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hardik singh (Assistant Manager)     04 August 2013

Regarding non acceptance of my resignation

Dear Sir/Madam (s)

 

I am currently working in a company with its Regd. office located at Kolkata. I have been associated with the company for 3 years, 1 year as a trainee in probation.

 

I tendered my resignation from my position 3 days back and informed for a 15days notice period as the new company I am joining is demanding a quick joining.

 

My employment contract states the below mentioned points:

1) 90 days notice period or 3 months basic on acceptance by the company

2) Company always has the discretion that in the even of serving the notice period, the company in its absolute discretion may require the employee to serve the entire notice period. The decisioon fo the company in the matter of dat of relieving will be final and it will be unlawfull for the employee to take employment elsewhere.

3) All issues related to employment will be settled in Kolkata

 

Issue:

 

Post tendering my resignation and a giving a clarity to serve the notice period of 15 days for a smooth handover, the company is not accepting my resignation and is asking me to serve the entire notice period. I am in a thick soup as I have to join the new company soon and fear they might withdraw their offer in the present situation.

Also if i choose to leave, would the company be in a position to sue me? I fear the company will also hold my full and final settle ment in such a case.

 

Please guide what should be my course of action in this situation? I would like to have a smooth exit in this case and would be willing to pay the notice period amount if in case the full and final demands it (the same mentioned in my resignation)

 

Should I quit attending the office after my given last date? I solicit advice from all the reputed lawyesr here to decide my future course of action.

 

 

Yours Sincerely

Hardik



Learning

 5 Replies

Kumar Doab (FIN)     04 August 2013

 

You have posted that:

 

-------“ I am in a thick soup as I have to join the new company soon and fear they might withdraw their offer in the present situation.”

You can be in even thicker soup if the situation is complicated by your current and future employer, both.

Do not hurry and do not act in haste.

 

A bird in hand is better than two in bush.

 

 

First of all you firm up in writing under acknowledgment some issues with future employer.

 

Inform them in writing that you have shown them the original appointment letter of current employer and as per T&C in the appointment letter you need to serve full 3 months’ notice period and as per the offer letter ( obtain one in its printed version) dated issued to you the joining period offered to you is ………………..days only.

If you resign from current employment you shall need to tender notice pay @ CTC/Gross pay/Basic+DA……..as stated in your appointment letter and suffer financial loss of Rs…………which the future employer should pay you on the date of joining.

( If the current employer agrees without any tags it is good, say………….it shall only if you remain in employment for ……………..days/months……………..or it shall be recoverable if you leave before………………….. days/months)

 

And that the acceptance of resignation is discretion of employer as per clause number……………in appointment letter dated………….shown by you, therefore if the future employer agrees in writing, to appoint you on the strength of copy of notice of resignation/final resignation, proof of dispatch (by redg. post addressed to good offices of appointing authority, MD……………..), POD (obtain it from concerned PO) ONLY you shall proceed to issue notice of resignation…………………….

 

You may add that the current employer may decline to issue acceptance of resignation/FNF statement-settlement/relieving letter and if it is not supplied to you, you can also not supply it……………………….and it should not result into termination of your employment.

 

You may offer to write the notice of resignation in o/o future employer and handover one copy so that future employer may send one copy from its office/thru its own staff and retain the POD……………………..

 

The point is that you should not be deserted in an adverse situation and the future employer should stand by you.

 

You may also demand to inform you if the future employer would want you to sign some agreements/clauses/bond etc of any kind and type……………which may dazzle you upon joining and which you may not like to sign………………………..and the payouts are fixed or performance linked, or CTC based etc………………………

 

----------You are in which state? Does the company has an office at your location and is it registered?

 

What is this establishment: Commercial or Industrial?

Does it have its certified standing orders and has it extended it to your designation?

 

Does Industrial Employment Standing Orders Act/Model Standing Orders apply to it and does it cover your designation?

 

 

The service conditions stated in standing orders can not be negated to employee in appointment letter……………….i.e. if notice of dismissal is stated as 1 month in standing orders it can not be 3 months in appointment letter.

 

In addition to the Industrial Disputes Act, 1947, several states also provide for compliances under the Shops & Establishment Acts, Standing Orders Act……………..

If the employee falls within the definition in such enactments, he can be protected up to that extent……………….

 

{{{{The notice period is max. of 1 month in Model Standing Orders , Shops and Establishments Act and any period higher than that is for the benefit of employer.

 

Any policy in the larger interest and beneficial to both employer and the employee has the sanction of law as otherwise it will be easily termed as arbitrary.

 

The clauses posted by you hamper your interest in securing another better opportunity when it arises and may get termed as arbitrary.

 

You have not posted the clauses on: if the termination is initiated by employer:

Does the clause on termination by company specify it shall be the choice of the employee to accept notice pay in lieu of notice period?”

 

If not it s another indicator of arbitrary conduct and mindset of employer……….}}}}

 

 

 

If covered by this enactment the employee can approach Inspector under this Act, and O/o Labor Commissioner if the need be……………………………….The latest version of the Act and  contact details of officials would be available at the Dept. of Labor website ………………of the state.

 

Designation alone does not decide employee is a ‘Workman’ as in ID Act or “Employee’ as in Shops & Establishment Acts……………..Your lawyer may ask you a set of structured questions and can opine on it.

 

 

Let us assume that you/your designation is not covered by provisions of any of such enactments you may have to seek recourse in provisions/T&C as stated in job advertisement calling for applications, letter of appointment, employment contract/agreement and the standing orders/service rules……………….HR policy, exit policy, severance policy, service book, employment rules ……………..

Etc. and you may have to approach civil court.

 

You may download copy of each before the access for you is blocked by your company……….!!!!!

 

-----------You have signed the acceptance of T&C posted by you, by your free will.

You may look for way out in the standing orders, enactments applicable to the company e.g. Shops and Establishments Act, appointment letter issued to you……………….

 

The contract of employment should promote equitable discretion.

 

Are you aware of any incidence when employee tendered notice of 3 months and company accepted it at once or before expiry of notice period?

 

If yes employee(s) may cite such incidences to hint arrogant, high headed, arbitrary, attitude of employer…………………

 

The clause of discretion for employer suggests that employer can accept before expiry of notice period (although it would be illegal, unlawful)…………….

 

------------There are publications to suggest that employers have been pressing for serving notice of min. 3 months and do not compromise on it, and they craft employment contracts on these lines…………………….

 

You may expect other issues from this employer e.g; refusal to issue acceptance of resignation, declare you having absented/absconded/abstained, thus deny proper relieving and relieving letter and issue adverse comments during BGV…………………………

 

If your resignation has not been accepted, the employer has not ended the employer-employee relationship in its record……………….

 

The employer may deem and see your case as ‘beneficial termination’ to deter other employees…………………………!!!!!!!

 

 

------------- Resignation can be without permission or notice.

 

Apparently the liquidated damages in case of breach of contract have been stated in the form notice pay @ Basic Pay…………………

This should be the max. amount of compensation……………………either party has to pay to other whose rights have been violated in case of breach of T&C of the contract…………..

 

Therefore it might be possible to enclose the cheque of notice pay along notice of resignation, demand acknowledgment and ask to adjust the notice pay in FNF statement and reduce the FNF mounts by notice pay, and issue Form 16 as per correct FNF statement……………………after such reduction………………….

 

Still company may cite the clauses as posted by you and may claim that the ‘Employee’ that has resigned has not completed the tasks/assignment on hand………………..which would cause financial or other loss(es) to the company…………………..and the employee  has not properly handed over the charge, company property………………

 

The employee should apprehend such contentions and cover his interest by carefully drafted notice of resignation/subsequent representations/reminders/final resignation……………………….

 

Employee should declare that no task(s) are pending as on date………..and now onwards only routine work may be allocated which can be completed on day to day basis within and up to expiry of notice period of ………………….days, and last day in office…………………i.e. dated……………….

 

Employee should demand that he should be informed to whom the charge, company property (if any) should be handed over within and up to expiry of notice period of ………………….days, and last day in office…………………i.e. dated……………….

And the designated official should be advised to issue proper acknowledgment on the spot.

 

 

---------------In case of dispute the jurisdiction of courts can be last location of employee, location of redg. office of the company, jurisdictional courts as stated in appointment letter/contract of employment…………………..

 

Let your lawyer’s opinion be final on it.

 

 

--------------This is the time to build favorable record in writing.

Resignation is personal matter and transactions should be preferably in writing by redg post and if email is chosen, choose personal email which is in record of the company………………..

 

-------------Employee should always consult………………….and consult in advance……………… elders in the family, competent and experienced well wishers, lawyer/law firm, than acting on his own or in haste…………………and fall in legal traps…………………and repent later……………….

 Employees should form associations, trade unions, registered unions, and thus be able to negotiate service conditions.

If certified standing orders are extended to designation of all employees the protection offered to employees shall be better.

 

--------------Such matters are best resolved by applying rapport, goodwill, exceptional levels of reasoning, persuasion, persistence, negotiation skills. Employee should develop such skills.

These skills can be acquired.

 

If deemed fit at your end why don’t you try to offer to serve notice period of one month (Obtain extension of joining period from future employer in writing)……………………..suggest some internal replacement or candidate that can fill for you internal or external……………………….

 

If you feel you may dare and make a gentle mention that your reporting authority/HOD knows the task performed by employee at your designation and can handle the work and train any other replacement……………………….

You may offer to train any employee designated as your replacement………………… within and up to expiry of notice period of ………………….days, and last day in office…………………i.e. dated……………….

 

 

--------------Hope you can read between the lines.

In another on issuing legal notice company relented.

 

https://www.lawyersclubindia.com/forum/Resignation-not-accepted-85601.asp#.UfqR3NKAqWM

 

You may choose wisely and carefully as suitable to you.

 

There are many threads on similar queries which you may find relevant and useful e.g;

https://www.lawyersclubindia.com/forum/Resignation-with-short-notice-and-letters-85664.asp#.Uf4IsNKAqWM

 

Let your lawyer’s opinion be final on all points discussed in this thread and you may proceed under expert advice of your lawyer or as deemed fit at your end.

 

 

Valuable advice of learned experts/members is sought.

1 Like

hardik singh (Assistant Manager)     04 August 2013

Dear Mr. Doab,

 

Thank you so much for the detailed guidance. It is much appreciated. I have also attached herewith, the scan copy for the part of my appointment letter explaining the clause of cessation from service for your kind perusal. I have an impression of an arbitrary statement here. Also YES, there are few instances when the company asked the employees to put down papers with 3 months notice from employee end; and after serving just 1 month, settled the parting with 2 months basic pay.


I am currently operating in the Gujarat area office which is registered but I believe is not covered under Industrial Employment Standing Orders Act as it is a purely commercia business office and my current designation is Sales oriented.

 

I also doubt that if I myself pay up for the notice period; the company might accept it but still delay the F&F to a date when it would be of no use.


Attached File : 743706817 3.jpg downloaded: 153 times

seshadri vikrala ( Asst.Security Commissioner/Group 'A' RETIRED)     04 August 2013

Originally posted by : hardik singh

Dear Sir/Madam (s)
First of all remember if you have signed the "UDA"- "Un Disclosed Agreeement" made out by the Company and its norms regarding your commitment  about your job and resignation, etc.; if you have done so, you have loose three months salary ( pay back and get out phnonmenon)
 or let the new Company know of your ealier agreement and ask them to wait !!!

I am currently working in a company with its Regd. office located at Kolkata. I have been associated with the company for 3 years, 1 year as a trainee in probation.

 

I tendered my resignation from my position 3 days back and informed for a 15days notice period as the new company I am joining is demanding a quick joining.

 

My employment contract states the below mentioned points:

1) 90 days notice period or 3 months basic on acceptance by the company

2) Company always has the discretion that in the even of serving the notice period, the company in its absolute discretion may require the employee to serve the entire notice period. The decisioon fo the company in the matter of dat of relieving will be final and it will be unlawfull for the employee to take employment elsewhere.

3) All issues related to employment will be settled in Kolkata

 

Issue:

 

Post tendering my resignation and a giving a clarity to serve the notice period of 15 days for a smooth handover, the company is not accepting my resignation and is asking me to serve the entire notice period. I am in a thick soup as I have to join the new company soon and fear they might withdraw their offer in the present situation.

Also if i choose to leave, would the company be in a position to sue me? I fear the company will also hold my full and final settle ment in such a case.

 

Please guide what should be my course of action in this situation? I would like to have a smooth exit in this case and would be willing to pay the notice period amount if in case the full and final demands it (the same mentioned in my resignation)

 

Should I quit attending the office after my given last date? I solicit advice from all the reputed lawyesr here to decide my future course of action.

 

 

Yours Sincerely

Hardik

Kumar Doab (FIN)     04 August 2013

 

 

You have posted that:

 

 

----------“Also YES, there are few instances when the company asked the employees to put down papers with 3 months notice from employee end; and after serving just 1 month, settled the parting with 2 months basic pay.”

 

There is difference between company accepting resignation on its own before the expiry of notice period

 And

Company asking the employee to write his (final) resignation before the expiry of notice period and agreeing to tender notice pay of shortfall in notice period (as a private arrangement)………………Employee c an no be asked, coerced, forced, to write his own resignation…………………….(It may be termed as offence…………………)

 

In both the situations company want to terminate at its will…………………and to achieve it, It resorts to tactics………………

 

 

Both can be termed illegal, unlawful…………………

 

{{{{{{ 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.}}}}}

 

And

 

Company waiving off the notice period on request of employee……………

Company can waive off the notice period/pay……………

 

If you can get a waiver it shall be quickest and easiest resoloution………….

 

 

--------------“I am currently operating in the Gujarat area office which is registered but I believe is not covered under Industrial Employment Standing Orders Act as it is a purely commercia business office and my current designation is Sales oriented.”

 

 

The state government can bring all Commercial Establishments into the purview of Standing Orders. The Govt. can notify all commercial establishments as Industrial Establishments, under the Payment of Wages Act…………………………….

 

 

In such a case the Establishments have to drat its standing orders and get these certified and till then Model Standing shall apply…………………………..

 

 

The state of Kerala has recently notified it……………………..

 

You may go thru:

 

 

https://www.lawyersclubindia.com/forum/Standing-order-mandatory-for-kerala-comm-establishments-85438.asp#.Uf468NKAqWM

 

 

Moreover state of Gujarat follows Bombay Shops and establishments Act which is so employee friendly that it can protect your interest.

 

The salient features and some excerpts are pasted below for your ready reference.

 

You may also go thru the Act.

 

https://www.lawyersclubindia.com/forum/Resignation-with-short-notice-and-letters-85664.asp#.Uf4-PtKAqWM

 

 

----------“I also doubt that if I myself pay up for the notice period; the company might accept it but still delay the F&F to a date when it would be of no use.”

 

Firm up your terms with future employer…………………..in writing.

You may fine tune your representations as suitable to you.

 

You may also submit carefully structured representations addressed to good offices of your appointing authority, MD………………to build favorable record in writing…………

 

It shall be appropriate to approach a competent and experienced labor consultant/service lawyer with copies of all documents and communications on record, spend quality time with your lawyer, give inputs in person, understand the merits and proceed under expert advice of your lawyer. It shall be good if your communications are drafted by your lawyer.

A competent lawyer may turn the tables for you.

 

Rest is up to you. You may proceed as deemed fit at your end, and defend your interest in the best possible manner.

 

 

---------Bombay Shops and Establishments Act (in short SE Act Bombay) is so employee friendly:

 

38. Application and amendment of the Payment of Wages Act. (l)Notwithstanding anything contained in the Payment of Wages

Act,  1936, (V  ?f

1936)………. the Inspector appointed under this Act shall be deemed to be the Inspector…herein referred to as "the said Act",…….for the purpose of the enforcement of hei provisions of the said Act within the local limits of his jurisdiction.

( Implies that the Inspector under SE Act shall be the Wages Inspector )

38 A: Application of Act VIII of 1923 to employees of establishment.-The provisions of the Workmen's Compensation Act,  1923  (VIII  of  1923),  and the rules  made from time to time thereunder, shall,  mutatis mutandis,  apply to employees  of  an establishment to  which this Act applies, as if they were workmen within the meaning of the Workmen's Compensation Act, 1923.

( Implies any employee under SE Act shall be eligible as if he is a workman and can invoke WC Act)

38B : Application of Industrial Employment (Standing Orders) Act to establishments.-The  provisions of the Industrial Employment (Standing Orders) Act,  1946,  in its application to the State of Maharashtra [(hereinafter in this section referred to as "the said Act"), and the rules and standing orders (including model standing orders) made thereunder from time to time, shall,  mutatis rnuimdis,  apply to  all establishments wherein fifty or more employees are employed and to which this Act applies, as if they were industrial establishment within the meaning of the said Act.

(Implies if company is under SE Act and if it has not framed its standing orders the model standing orders shall apply to all employees. If standing orders are not certified, Model Standing Orders should apply and are attached. You can also download from Dept. of Labor Maharashtra/Bombay website also. Thus while you can approach Inspector under SE Act you should also be eligible to approach Labor Inspector/ALC.)

{ Model Standing Orders: 3.               Tickets,  11.         Payment of wages,  

13.       Termination of employment: .--(1) For terminating employment of a permanent workmen, notice in writing shall be given either by the employer or the workmen - one month’s notice in the case of monthly-rated workmen and two weeks’ notice in the case of other workmen: one month’s or two week’s pay, as the case may be, may be paid in lieu of notice.

15.      Complaints,

16.  Certificate on termination of service.--Every permanent  workman shall be entitled to a service certificate at the time of his dismissal, discharge or retirement from service.

 

NOTE. - There is a provision under  this  Act for issuing a service certificate at the time of  dismissal, discharge or retirement and every person is entitled to take such certificate.

 

17.  Liability of 17[employer].--, 18.          Exhibition of standing orders.-)

51.    Employer [and manager  to produce registers, records etc.  for inspection.

( Implies that if you lodge a complaint the Inspector can not check all records, your personnel file but can take these to his office. You may obtain certified copies and even peruse RTI route.)

Moreover the Inspector is under obligation report every two months as given in Sec.66

55.    False entries by employer and manager.

58.    Determination of employer for the purpose of this  Act.

66.Notice of termination of service

 


Attached File : 743718123 the bombay shops establishments act.pdf downloaded: 92 times

Adv k . mahesh (advocate)     05 August 2013

in your case it is quite clear that the company is accepting if you can convince the company without notice period and also for the quick settlement for full settlement so pay the three months basic pay and leave the organisation with all the settlement

because naturally if any better oppurnity then previous job is then only we will go for the job 

so in your case it is quite clear that you are ready to pay and come out with reliving letter without any problem so talk to the head of the department and make a final settlement and join in the new job without any problem 


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