Notice period with the employer

Why should he remain unemployed?

At the same time the employer or its attornies/cronies have signalled that a dispute has started and they shall cause damage!

 

Why should employee suffer from any damage?

 

Is next employer willing to acccept him (in writing) on the strength of copy of resignation only and without any service certificate/relieving letter?

 

Is this bank a memeber of IBA and are the employees member of AIl India Bank Employee's Association?

 

Just A word 'Banking Firm' does not provide clear and full information.

 

What is this establishment registered as: Commercial,Industrial? {(Banking Firms for private gains might have to register under (Name of the state) Shops and Commercial Establishments Act, and standing Orders may apply (certified/Model).}

 

The Division/Dept./office where you were located last is: registered as: Commercial,Industrial?

What is its line of business; IT,Banking etc?

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

 

 

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?

 

Did you have any power to sanction (not just recommend) leave/increment/appoint/terminate?

Were you confirmed or under probation period?

Does the establishment have its certified standing orders and is your designation covered by it (do you have a copy) or Model Standing orders apply to it?

 

Has it issued you any offer letter (after selection, before joining) and appointment letter after joining, and salary slip of each month, PF number, ESIC card, I.Card?

 

Do you have leave policy, HR policy, Service Rules and Regulations, Conduct and Discipline Rules, Exit Policy, that are mentioned in the appointment letter etc?

 

Is it mentioned in appointment letter that notice pay @...............Basic/Gross/CTC can be tendered in lieu of notice period by employee? Is there any condition like subject to aceptance by employer?

 

Is it mentioned in appointment letter that notice pay @...............Basic/Gross/CTC can be tendered in lieu of notice period by employer? Is there any condition like subject to aceptance by employee? OR the concurrence of employee is not required if separation by termination is initiated by emplouer?

 

Is it stated that HR policy, Service Rules and Regulations (that are mentioned in the appointment letter) shall govern the service conditions?

 

Are you a member of any employee’s/Trade Unions?

You may reply pointwise to each point for further response.

 

You may also go thru many threads with similar query e.g;

https://www.lawyersclubindia.com/forum/Reporting-manager-hr-not-accepting-resignation-123511.asp

https://www.lawyersclubindia.com/forum/Performance-incentive-company-denying-to-pay-the-same-121230.asp#.VZuzVLV-jMo

 

https://www.lawyersclubindia.com/experts/Relivieng-letter-546951.asp#.VZ_qy7V-jMo

https://www.lawyersclubindia.com/forum/Resignation-with-short-notice-period-123679.asp

 

Why should he remain unemployed? -

either join with the new employer if relieved or search for another employer after 90days of notice period. Not willing to continue with current employer as a resigned candidate.

Is next employer willing to acccept him (in writing) on the strength of copy of resignation only and without any service certificate/relieving letter? -

 New employer will accept resignation acceptance with date of relieving mentioned in it but before offered joining date. DOJ can not be extended that was clarified before sending offer letter.

Just A word 'Banking Firm' does not provide clear and full information. -

It is HDF..Bank

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

My reporting office is in Hyderabad

What was your designation and nature of duties?

Dy. manager credit loans, underwriter

Did you have any power to sanction (not just recommend) leave/increment/appoint/terminate?

NO

Were you confirmed or under probation period?

Confirmed employee

Has it issued you any offer letter (after selection, before joining) and appointment letter after joining, and salary slip of each month, PF number, ESIC card, I.Card?

YES

Do you have leave policy, HR policy, Service Rules and Regulations, Conduct and Discipline Rules, Exit Policy, that are mentioned in the appointment letter etc?

YES

Is it mentioned in appointment letter that notice pay @...............Basic/Gross/CTC can be tendered in lieu of notice period by employee? Is there any condition like subject to aceptance by employer?

Yes, mentioned but at the discretion of the employer 

Is it mentioned in appointment letter that notice pay @...............Basic/Gross/CTC can be tendered in lieu of notice period by employer? Is there any condition like subject to aceptance by employee? OR the concurrence of employee is not required if separation by termination is initiated by emplouer?

 

Is it stated that HR policy, Service Rules and Regulations (that are mentioned in the appointment letter) shall govern the service conditions?

 

Are you a member of any employee’s/Trade Unions?

NO

Thanks for the immediate response 

further to my replies above.. Termination policy says "either bank or employee will be required to give three months notice in writing or salary in lieu of notice. The decision as to whether or not to accept salary in lieu of notice period will be solely at the discretion of the management " in this case how we can proceed if bank is not ready to relieve on the requested date?

 

You have not replied to all points.

If you are not a member of Employee’s/Trade Unions then it is your lapse to your disadvantage.

 

It is felt that M/s HDFC Bank, M/s ICICI bank is not member of IBA.

Has he been ever made to work beyond 8hrs/day & 48 hrs/week? Does he have evidence Or can he download the evidence? Has the Bank paid OT? Have you ever staked claim to OT/ You should.

 

Can he download evidence of any breach of contract by employer/bank/establishment, which would render the employer as unworthy?

 

 

The local office, Circle office in AP might be covered by the Andhra Pradesh Shops and Commercial Establishments Act (that is so employee friendly)  and might have registered under Andhra Pradesh Shops and Commercial Establishments Act, and if yes or even if not registered despite being covered………………………………..your counsels in Employee’s/Trade Unions e.g. CITU/INTUC/AITUC/BMS etc /an able Labor law Consultant-Service Matters Lawyer-Law Firm……………. may opine that you would be covered by the def. of ‘Employee’ as in the Act…………………….and even as ‘Workman’ as in ID Act.

 

You may go thru the registration Certificate that has to be displayed ear entrance and also note down the name/designation of Employer/Manager/Agent of Employer as in the registration certificate.

 

If you are covered by the def. of ‘Employee’ as in the Andhra Pradesh Shops and Commercial Establishments Act then notice period of any employee that has worked for not less than 6 months = 30 days maximum ……………………and  NIL if  employee  has worked for less than 6 months……………… and this enactment will score over/prevail upon any private agreement/rule/policy that employer has signed with employee e.g. appointment letter/contract of employment/HR policy/Termination Policy etc………………….

There are various decisions and judgments by Chief Inspector/Courts of Law supporting it and no Labor Official can accept notice period beyond the provisions of the Act.

If you are covered by the def. of ‘Workman’ as in ID Act and employer does not have certified standing orders covering your designation thus implying application of Model Standing Orders then you may go thru Sec13-18…………………….and notice period is NIL during probation and max.30 days after confirmation of employment, and employer is responsible for faithful observance or can be penalized. Standing orders are certified on the lines of Model Standing orders. Standing orders (Certified/Model) being instrument of Law/Statue shall prevail upon any private agreement/rule/policy that employer has signed with employee e.g. appointment letter/contract of employment/HR policy/Termination Policy etc………………….

 

 The extract of Termination Policy posted by you states provision of notice pay in lieu of notice period with stinker………………..’ solely at the discretion of the management’……………..Does employee has the same discretion of accepting/rejection notice pay in lieu of notice period if employer  initiates separation by termination? Are you aware of any incidence  that employer does not seek permission of employee to accept notice pay in lieu of notice period?

 

Thus it does not provide for ‘Equitable Discretion’ that is essence of contract of employment and can easily get termed ‘arbitrary’ and may be set aside.

You may offer to tender FnF payment (do not forget to write as per correct notice period applicable to you) by cheque/DD/cash under proper acknowledgment or ask to adjust in FnF statement. You must also mention that collection/adjustment of notice pay should be mentioned in FnF statement.

It is upto you to resolve applying your skills, skills of your counsels, or agitate later at any point of time later. However you should build favorable written record while in employment under proper acknowledgment, and avoid signing any FnF statement.

 

Thanks for the response.

I agree with your view. 

1. He is not the member of any union.

2. Bank is not the member of IBA.

3. It is a routine practice to work beyond 8hours and can download the evidence of working w.e.f resignation date

4. Working as executive - middle management position, hence def. under Employee of the act.

under which section and clause notice period is mentioned?

When separation is initiated by the employee, date of early relieving is not requested in it. However a separate request was made to his manager & superior manager to relieve him explaining the reasons for so. The request was rejected by the superior manager. HR manager was not informed of the early relieving request.

kindly suggest a better solution 

 

 

Section;47……………………………Notice pay, rate of notice pay is equitable. Service conditions in contract of employment that is not just any contract like other contracts, should promote equitable discretions.

You may also go thru Sec:2,15,16,18, 35-38,58-59,68,………..

 

You have posted that:

 

--- “4. Working as executive - middle management position, hence def. under Employee of the act.”

Could not understand what exactly you want to convey?

 

The employee can find his ways and means to download the attendance/work hours clocked/orders of line managers etc to remain in office after office hours say by SMS/phone calls/emails/chats/Whatsapp messages/work reports/assignments completed ete etc…………

 

M/s HDFC bank is likely to claim that he is a Manager and not entitled to claim OT……………………..and it may not stand the test of law.

Then comes question of ‘compensatory off’ for work done on off days/holidays/national holidays…………….and per enactments that cover it.

It depends upon one’s resolve.

Work hours are to be displayed outside/inside the Bank…………………….and also in the Act.

OT should be paid alongwith wages on date of payment of wages.

 

---“When separation is initiated by the employee, date of early relieving is not requested in it. However a separate request was made to his manager & superior manager to relieve him explaining the reasons for so. The request was rejected by the superior manager. HR manager was not informed of the early relieving request.”

 

Resignation can be without permission and notice!

The moment employee has resigned; employee has ended the employer-employee relationship.

 Resignation is a personal matter and can be communicated from personal email and should preferably be addressed to appointing authority,MD, and sent by Redg. Post.

 

If separation is initiated by employee by notice of resignation/resignation………………….the date of separation shall be chosen by employee. Employee can not be forced to remain in employment for a single minute. Bonded labor/days of bondage are over.

 

Employer (and employee too) can claim loss, if any loss is caused by abrupt termination, if at all any loss is caused……………………….or liquidated damages that may not go beyond notice pay as per correct notice period and correct rate of notice pay applicable to employee……………………..Liquidated damages/Loss is not necessarily to be paid on demand and may have to be proved and actual cost/rates to be established.

 

You are perhaps referring to some stupid software resignation tool that gives nuisance value, intrusion to Line Managers, HR that are otherwise not empowered to accept or reject resignation by Board resolution.

 

If the say…………….resignation tool does not provide for date of resignation/notice period desired to be tendered by employee…………………..then download the screenshot/printout and cite the deficiencies of the system e.g. no provision to mention notice period/LWD and submit resignation by letter (backdated to date of submission of notice), and narrate the reason and insert the representations made to Line Manager with date/name/minutes……………..

 

In you desire inform the HR Manager, by a copy and covering letter. Is HR manager the employer?

What is the reason quoted by Superior Manager? Counter it.

 

In an interesting case a GM of a Pharma Company was accepted as ‘Workman’. Unfortunately the employee dies during the proceedings and his LR’s did not pursue the case.

 

There are many decisions by Chief Inspector (Labor Commissioner) of AP and endorsed by courts on applicability of notice period as per the Act.

 

Obtain CO (Certified Standing Orders) and check if designation of employee is covered and if standing orders are certified on the lines of Model Standing Orders.

 

Your counsel(s)  shall opine that standing orders shall prevail upon appointment letter.

Employee or anyone can obtain certified copy of standing orders from certifying authority that might be DLC in o/o Labor Commissioner at location of Redg. Office of the company……………………against a nominal payment say Rs3/page.

 

The best shall be that you should consult an able Labor law Consultant-Service Matters Lawyer-Law Firm, in person with copies of all documents on record……………………..and obtain a second opinion since you are apprehensive.

Servant shall choose the master.

 

 

 

 

 

Thanks for the valuable advise.