Termination after resignation

Employee should always show the documents to elders in the family, competent and experienced well wishers, lawyer/law firm and proceed under expert advice.

The docs mentioned by you in Excel sheet attached by you should help to rescue you from situation. However you may approach a competent and experienced labor consultant/service lawyer, with elders in the family, show all documents in person, spend quality time with your lawyer, understand the merits and proceed under expert advice of your lawyer.

You need to agitate now so that the order of termination issued on 3^rd October should be called back.

--“ Now, on my resignation dated 6^th Sep 2012, I had requested for an early release and had clearly mentioned that my last working date will be 15^th Sep 2012.

“But after our verbal discussion with the management and according to their mail dated, 12^th Sep 2012 I was told that my resignation is accepted and I will be intimated my release date shortly.”

Your appointment letter issued by parent company seems to be in line with guidelines and sections of Model Standing Orders under IESO Act and SE Act Mumbai.

The effective date of resignation is issued by the employee/employer whosoever is initiating separation. You have done so. However your employer has expressed its desire to inform date of release which can be max. date of expiry of full notice period and beyond that company has to request you to stay for longer period and express its concurrence to pay you wages.

The notice period as in your case would be max. 15 days thus expires on close of office hours on 20^th Sep. You have left on 21^st Sep thus have served notice period as stated in appointment letter issued to you.

The employee should handover the charge/company property (which you have done) under acknowledgment (which you have). Your have trained the replacement and transferred the knowledge to employee designated as your replacement.

--“After 2 years of service I have never received any confirmation mail from the company that I am a confirmed employee, neither the same was updated in the employee portal.”

Is it mentioned in your appointment letter that your services shall be confirmed in writing…?

You have posted that your status on web portal of company for employees establishes that your services were not confirmed.

--“After all these things threatening mails was sent to me stating my termination.‘

Have you replied to these and clarified that the notice period applicable to you is 15 days only as per clause number ….dated….of appointment letter issued to you? You may show these emails and your reply to your lawyer.

Let us try to put things in order and simplify the events.

--What is the letter issued by subsidiary company an offer letter or appointment letter?

The offer letter is not contract of appointment/ appointment order or letter.

Offer letter is issued after selection of the candidate valid for specific period and appointment order is issued upon joining the duties. Appointment letter is contract of employment.

---Which company has paid you salary from period 21^st July, 2010, to 9^th Sep 2010: the subsidiary company or parent company?

Have they deducted PF, ESIC, TDS, group Insurance, medical insurance etc from salary paid during this period?

You may also check Form 16 issued to you for period 21^st July, 2010 to 31^st Mar, 2011 and check which company has deposited TDS from your salary for period 21^st July, 2010, to 9^th Sep 2010.

Have they issued any card for ESIC, group Insurance, medical insurance…..if yes which company has issued these cards?

Has the company issued PF number, if yes which company? Has any of the subsidiary or Parent company supplied you PF a/c slips or E pass book?

If parent company has paid the salary against appointment letter issued by subsidiary company, how they are adjusting their books is a question the Wages Inspector, Inspector under SE Act, labor Inspector, PF Inspector, ESIC Inspector should probe. Their contact details might be available at Dept. Of Labor /SE Inspectorate website, of Mumbai.

The company must have obtained Policy for Gratuity from LIC and must have been depositing Gratuity contribution. The payroll dept. can provide policy number and LIC Id and you can see online the contributions paid and accumulated in you’re a/c.

The P&S section handling superannuation in LIC can also provide you this ino.

Once again you need to check which company has paid employer’s statutory contribution of Gratuity?

If the parent company has been paying salary for the period for period 21^st July, 2010 to 31^st Mar, 2011, then it would have issued and maintained your service card from 21^st July, 2010 and now it has to issue appointment letter, FNF statement, service/work experience certificate, relieving letter to you from this date (and cancel the appointment letter it has issued you from dated 9^th Sep 2010) and showing period of service from 21^st July, 2010 to 21^st Sep.

---“ To respect their words & by understanding the situation of the company, I postponed my date and was waiting for a formal communication on my date of release, and  was also waiting for a person to join in my place so that I can provide hand over to the person so that the  company/work  does not suffer .

Post 15 days of my resignation notice & post 10 days of acceptance of the same, after multiple verbal requests, my last working date was not formally communicated to me over mail or in writing.”

Did you submit any communication in writing covering all these?

There should not be any communication hinting that you have withdrawn your notice or your notice has expired.

--“ According to the discussion held with my HR Head, on 11^th Sep 2012, during his visit in Kolkata, it was said to me, that for an early release, three things needs to be taken care off.”

Did you submit any communication in writing covering all these?

--“ I had specifically mentioned & requested, over ph & text messages, a number of times, that I have a deadline of 22^nd September & beyond that I will lose out my employment and I will be jobless as I had already resigned from this company.’

Have you kept the bills and texts?

Did you submit and minutes covering all these?

_-‘ It was not at all, that all of a sudden I had discontinued my services; proper intimation was there from my side always. After proper intimation I self released myself and declared that I will not be able to continue post 22^nd September and my last working day was 21^st sep 2012.’

Have you supplied such communications in writing?

Has this company supplied you FNF statement, payment of FNF dues and have you accepted the FNF statement? You must decline to accept the FNF statement in writing?

The service conditions are governed by standing orders of the company, appointment letter. The services conditions in the standing orders shall prevail and can not be denied in appointment letter.

HO of the company is in Mumbai and probably it is registered under SE Act of Mumbai which is so employee friendly (attached. You may study it carefully).

^[??-?.  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. Model Standing Orders 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.)

You may also go thru:

{ Model Standing Orders (Attached): 3.               Tickets,  11.         Payment of wages,  13.       Termination of employment,  15.      Complaints, 17.  Liability of 17[employer].--, 18.          Exhibition of standing orders.-)

38. Application and amendment of the Payment of Wages Act.

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

[?8 ?. Application of Act VIII of 1923 to employees of establishment.-

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

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.

SE Act does not indiscriminate between a workman or non workman, and covers all employees.

Inspector under SE Act can check the records, registers, files, and even call the record in his office. If you can apply your resources you can approach the Inspector and check the records for period of 21^st July, 2010 to 31^st Mar, 2011. YOu may obtain the records from Inspector or thru RTI.

As per payment of Wages Act Sec 13A employer has to maintain the record and registers for 3 years.

You may also go thru SE Act West Bengal (Attached. Study it carefully)

Designation alone does not decide that employee is a workman or not.

Your lawyer may ask you a set of structured questions and may opine that you fall with in the category of workman or may advice that you may choose civil suite with damages. You may discuss the merits in charging the HR/Line managers/MD etc by name and filing a criminal complaint at your location and let them camp at Kolkota.

Let your lawyer’s opinion be the final opinion on points discussed above.

You may choose the forum in which you want to agitate.

Valuable advice of learned experts/members is sought.

Attached.

Dear Sir,

Thanks for your reply. I have answered your following question in red below.

Following dates will also clear the picture.

--“After 2 years of service I have never received any confirmation mail from the company that I am a confirmed employee, neither the same was updated in the employee portal.”

Is it mentioned in your appointment letter that your services shall be confirmed in writing…?  - Yes the same is stated in the letter with heading LETTER OF APPOINTMENT (letter head of the mother company, attached herewith)

--“After all these things threatening mails was sent to me stating my termination.‘

Have you replied to these and clarified that the notice period applicable to you is 15 days only as per clause number ….dated….of appointment letter issued to you? –yes I have replied, but never mentioned that the notice period applicable to me is 15 days as I wanted to use it later as a trump card.

--What is the letter issued by subsidiary company an offer letter or appointment letter? – It does not have a heading and starts with, we are pleased to offer you (Attached herewith) where as the letter from the mother company states it an appointment letter and has my EMPLOYEE CODE mentioned(attached)

--Which company has paid you salary from period 21^st July, 2010, to 9^th Sep 2010: the subsidiary company or parent company? – my payslip states parent company but by form-16 says the subsidiary company

Have they deducted PF, ESIC, TDS, group Insurance, medical insurance etc from salary paid during this period? – They used to deduct PF & professional tax

You may also check Form 16 issued to you for period 21^st July, 2010 to 31^st Mar, 2011 and check which company has deposited TDS from your salary for period 21^st July, 2010, to 9^th Sep 2010.

Have they issued any card for ESIC, group Insurance, medical insurance…..if yes which company has issued these cards? – I was not eligible fpr esic

Has the company issued PF number, if yes which company? – I just have the number, no company name is mentioned.Has any of the subsidiary or Parent company supplied you PF a/c slips or E pass book? – No did not receive any

Post 15 days of my resignation notice & post 10 days of acceptance of the same, after multiple verbal requests, my last working date was not formally communicated to me over mail or in writing.”

Did you submit any communication in writing covering all these? – Yes I have, all are written to them on 21^st Sep, my last working day.

-“ According to the discussion held with my HR Head, on 11^th Sep 2012, during his visit in Kolkata, it was said to me, that for an early release, three things needs to be taken care off.”

Did you submit any communication in writing covering all these? - Yes I have, all are written to them on 21^st Sep, my last working day.

--“ I had specifically mentioned & requested, over ph & text messages, a number of times, that I have a deadline of 22^nd September & beyond that I will lose out my employment and I will be jobless as I had already resigned from this company.’

Have you kept the bills and texts? I have the copies of my ph bills, but dnt have the text messeges.

Did you submit and minutes covering all these?-  Yes I have, all are written to them on 21^st Sep, my last working day.

_-‘ It was not at all, that all of a sudden I had discontinued my services; proper intimation was there from my side always. After proper intimation I self released myself and declared that I will not be able to continue post 22^nd September and my last working day was 21^st sep 2012.’

Have you supplied such communications in writing?- Yes I have, all are written to them on 21^st Sep, my last working day.

Has this company supplied you FNF statement, payment of FNF dues and have you accepted the FNF statement? You must decline to accept the FNF statement in writing? – no they have not settled my fnf and has mentioned in writing in my termination letter that they will not pay (attached herewith)

The service conditions are governed by standing orders of the company, appointment letter. The services conditions in the standing orders shall prevail and can not be denied in appointment letter.  As stated earlier the offer & appointment letter contradicts between each other.

Your lawyer may ask you a set of structured questions and may opine that you fall within the category of workman or may advice that you may choose civil suite with damages. You may discuss the merits in charging the HR/Line managers/MD etc by name and filing a criminal complaint at your location and let them camp at Kolkota. – What are those structured questions?

55.    False entries by employer and manager.

SE Act does not indiscriminate between a workman or non workman, and covers all employees.

Inspector under SE Act can check the records, registers, files, and even call the record in his office. If you can apply your resources you can approach the Inspector and check the records for period of 21^st July, 2010 to 31^st Mar, 2011. YOu may obtain the records from Inspector or thru RTI.

As per payment of Wages Act Sec 13A employer has to maintain the record and registers for 3 years.

You may also go thru SE Act West Bengal (Attached. Study it carefully) I also used to handle the admin of the branch, the company has a practice to pay bribe to the inspectors as they could never fulfill all the criteria. I have handles such incident twice.

You have posted that:

--“Exit Form was sent to me by HR Exec”

HR of the parent company supplying you the exit form from its email id/address signifies that exit process is started by parent company and you have to comply with the exit formalities which you have done on record and have handed over the charge.

Your resignation was submitted to parent company whihc appointed you and was already accepted, by parent company.

--“ It does not have a heading and starts with, we are pleased to offer you’

It appears to be appointment letter. The employer can terminate the employee by tendering notice of 1 month. Employee has to tender notice of 3 months.

In a contract both the parties should be at equals.

You may claim that notice period is same as that of employer i.e. 1 month if the need be.

Company may claim Specific Relief Act and that you are not a workman hence cross reference is not possible. However courts are not dumb.

By another appointment letter the Parent company has appointed you. The previous appointment letter should get cancelled.

What were the formalities completed by you, when new appointment order was issued by you?e.g: were you asked to resign from subsidiary company and submit fresgh HR forms to parent company??

Did you submit HR forms e.g. PF, Nomination, Gartuity only once and that too to sunsidfiary company??? And never to Parent company????

Let your lawyer’s opinion be final on it.

--“ my payslip states parent company but by form-16 says the subsidiary company”

How can one company pay salary from a/c of the company and adjust it in books and another company deducts TDS, and issues form 16?

You may check with some CA, Company Secretary…….

The Form 16 issued to you must be containing PAN/TAN number of the company.

--“ I just have the number, no company name is mentioned.”

Visit the nearest PF office and the APFC can let you know which company has opened your PF a/c and can provide its address too.

You can check it on line as well at:

www.epfindia.gov.in

“No did not receive any’

Company is duty bound to supply the PF a/c slips issued by PF office to all employees. You may complain that these were never supplied despite your demands made to HR and demand from company appointing authority of Parent Company, MD, with a copy to Head-HR that PF a/c slips be supplied to by redg/speed post only so as to reach to within next 7 days. If they don’t supply you can lodge a complaint with PF office and chase them thru RTI.

The Directory of officials and Citizen charter is on website.

--“ but dnt have the text messeges.’

The itemized bill of the yur phone would have details of SMS sent by you. If you don’t have originals, you can obtain last 1 year bills by registering at website of the telecom company.

--“ no they have not settled my fnf and has mentioned in writing in my termination letter that they will not pay (attached herewith)”

There are some threads at LCI also where employees have lodged complaints under 406,420 with police. You may check with your lawyer and decide how you want to proceed.

https://www.lawyersclubindia.com/forum/Resignation-of-an-employee-76209.asp

Model Standing Orders state that FNF dues and service certificate should be supplied to employee on last working day or within next 2 days.

Termination Letter:

Company has stated that “management had accepted your resignation and had communicated that last working day would be three months from date of resignation or earlier (decision on such date was pending).

Did the company actually communicate in writing to you that “last working day would be three months from date of resignation or earlier”

If not you may contest it also.

The company has placed on record that:

“ in your personnel file the reason for leaving would be recorded as “ Termination” Therefore you should endeavor to get it removed by succeeding in getting the termination order revoked.

Had the company sent you FNF statement ( with payment of FNF dues or claiming FNF dues from YOU) it would have been better.

The whole drama seems to be actions of adamant, recalcitrant, vindictive, zealous personnel in your company.

Whar are the underlined reasons???

You may try if you can succeed by perusing on your own or you may have to approach your lawyer and then court of law/lawful authority.

--“ As stated earlier the offer & appointment letter contradicts between each other.’

Standing Orders are as per Industrial Employment Standing Orders Act, which is a statue. Service conditions in standing orders shall prevail upon on appointment letter.

SE Act is applicable to all employees. SE Act Bombay states IESO Act shall be applicable to companies. If your company has not framed standing orders or these are not certified Model Standing Orders shall apply.

You may go thru clause No:  13.Termination of employment in Model Standing Orders. The notice period for probationer is NIL.

Similarly you may check clause on notice period in SE Act Mumbai/Kolkota: it is not 3 months. Thus notice period of 3 months in appointment letter issued by subsidiary company may be claimed as void to that extent citing SE Act.

Moreover  apointment letter issued by subsidiary company should become dyfunct and get overruled by appointment letter issued by parent company.

 --“ What are those structured questions?’

Your lawyer shall tell you in person….

--“ I also used to handle the admin of the branch, the company has a practice to pay bribe to the inspectors as they could never fulfill all the criteria. I have handles such incident twice.’

Unfortunately it has been a custom to offer “ Nazraana”.

You are affected and you know the loopholes and your rights.

Peruse thru RTI if required.

The authorities under SE Act are Inspector, Chief Inspector which may be even ALC and above. You would know it better at your location.

On line discussions have its own limitations.

You may find another thread at LCI interesting and useful. Termination was revoked under SE Act, and the appeal with Chief Inspector may be last and decision may be final and binding.

https://www.lawyersclubindia.com/forum/Suit-claiming-damages-and-criminal-case-60347.asp

You may approach a competent and experienced labor consultant/service lawyer, with elders in the family, show all documents in person, spend quality time with your lawyer, understand the merits and proceed under expert advice of your lawyer. Let your lawyer’s opinion be the final opinion on points discussed above.

Your lawyer can also explain to you the limitation of time period as applicable in your case.

You may proceed as deemed fit at your end.

Valuable advice of learned experts/members is sought.