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Shridhar Shah (Chartered Accountant)     06 August 2012

Termination from employment

Hi,


I was working in a MNC IT co @ mumbai from Aug'11 to Jul'12 in core finance dept.

I resigned from work on 6th Jul on the ground that my reporting manager was not trusting me for the work (mail marking only to my RM). After discussion on phone and in person, on 9th Jul, my RM agreed to releive me from duty and I sent the official resignation mail (threading the same mail sent on 6th) to my RM, Employee relation manager, HR manager and CFO. Also as per company rules, I resigned in the company system too stating my last working day as 10th Jul.

While discussing, my RM didn't agreed to me for notice period. As per employment agreement signed, either party can end employment with 3 month's notice period or payment of basic pay in lieu of notice period. I offered for 45 days, with assurance that the work will be handed over properly & all processes will be in place, my RM insisted for 90 days which was not possible for me to serve. in some other cases in my dept., people were given less than 90 days period to serve as notice period by the same RM. After both HR and RM not telling me about notice period, I chose not to report to work.


No discussion happened there after, though I called my ERM to bring some solution but all in vain. They threatened me that I will be declared absconded.


on 17th Jul, they sent me a notice to serve notice period or pay 3 month's basic, which was supposed to be replied by 24th Jul (7 days from issuance of notice). The notice was served to me on 23rd Jul via Speed Post.

I sent back my company assets (my ID cards) through speed post on 25th Jul even before they asked to surrender the same.

Even before I could respond them, they again sent me letter of termination on & effective from 24th Jul stating I failed to respond the notice or I ignored the same. Also stating they are not accepting my resignation dated 9th Jul (in system). I don't have documented copy of acceptance of resignation by RM but he had agreed to in discussion and as per his instruction in discussion, I sent the mail of resignation again on 9th Jul.


Can anybody please help me what is the course available to me? Is this termination legal? They are still stating in termiantion letter to contact HR for F&F (for notice pay).

I have clearly told HR & RM in discussion that I won't be able to serve 90 days notice peried but they didn't discussed for a lesser period to seerve as notice period.



Learning

 8 Replies

Adv Rohit Dalmia 9324538481 (Lawyer)     06 August 2012

Dear Shridhar,

 

I have gone through your contention. You may call on 9324538481. so that i could have a word with you and get some more details before giving any legal opinion.

 

Regards,

Advocate Rohit Dalmia

Mumbai

Kumar Doab (FIN)     06 August 2012

You have posted that:

--“As per employment agreement signed, either party can end employment with 3 month's notice period or payment of basic pay in lieu of notice period. I offered for 45 days, “

Did you submit this in writing and have you retained a copy?

As you have offered to tender notice pay for shortfall in notice period you have complied to terms and conditions of your appointment letter.

 

--”with assurance that the work will be handed over properly & all processes will be in place,” .You have acted like a good employee.

Did you submit this in writing and have you retained a copy?

You may reiterate to adjust notice pay in FNF statement and affirm to pay the payables if any as per correct FNF statement supplied to you by cheque against proper acknowledgment on letterhead of the company under original seal and signatures of the competent employee of the company. You may ask the company to supply you the name, designation, address of this competent employee in writing.

If you pay as per FNF system and your next employer buys out the notice period you shall not be subjected to double taxation. You shall get form 16 as per FNF statement. If FNF statement is not correct you may reject the acceptance in writing.

--“ They threatened me that I will be declared absconded.”

Did you submit this in writing and have you retained a copy?

 Employee should record such transactions audio/visual and keep a witness.

--“ I sent back my company assets (my ID cards) through speed post on 25th Jul even before they asked to surrender the same.’

You have acted like a good employee. Without being asked and informed to whom you should handover the charge and company property you have done so.

You may demand acknowledgment on letterhead under original seal and signatures of the competent employee of the company by redg/speed post only.

--“ Even before I could respond them, they again sent me letter of termination on & effective from 24th Jul stating I failed to respond the notice or I ignored the same. Also stating they are not accepting my resignation dated 9th Jul (in system). I don't have documented copy of acceptance of resignation by RM but he had agreed to in discussion and as per his instruction in discussion, I sent the mail of resignation again on 9th Jul.”

Did you minute this in writing and have you retained a copy?

You have done well for yourself by sending resignation by mail.

Have you retained a copy?

The resignation has become document on record and part of your personnel file.

You have not absconded.

Companies declare employees absconder to deny benefits and to avoid the process of termination.

You may obtain employee rule book, HR policy, etc from fellow colleagues and demand it from company.

You may address a representation to good offices of your appointing authority, MD, CEO, Chairman, Company secretary and cover and narrate all representations made by you in person, by email, by phone mentioning date of each representation, name of company employee to whom you represented, claim that you have not absconded and employees have been relieved with short names and mention names if possible, and seek relief and demand to withdraw the termination. You may request the good offices to let you examine your personnel file maintained by company.

Company is custodian of resignation in system and has to produce a copy. You can demand a copy from the system and any noting put in the system. Did the company referred to resignation in system or your email?

 

The IT companies were granted exemption from Industrial Employment standing orders by many of the state governments. It has let companies and employers become feudal. The state of Karnataka is contemplating to end the exemption. You may form a community of like minded employees approach leaders of your vote bank and initiate a movement to end the emption in your state too.

The line management and HR have been acting like governor, president of a republic to please their masters.

SE Act is applicable to your industry.  Employers give fancy designations to employees and work hard to let the employees believe they are not workman as many of the enactments limit the options to employer and favor workman. However designation alone does not decide employee is a workman or not. Let your lawyer evaluate the merits and confirm you fall within the category of workman or not.

Bombay SE Act is enclosed. You may go thru it.

The inspector can examine your personnel file and call for records.

 

 

 


Attached File : 990606153 bombay%20shops%20%26%20establishments%20act%201948.doc, 990606153 karntaka now applicability%20of%20standing%20order%20to%20it%20industries.doc downloaded: 113 times

Kumar Doab (FIN)     07 August 2012

You have posted that :

--"They are still stating in termiantion letter to contact HR for F&F (for notice pay)."

It is an attempt to extract Notice pay from you by DD/cash. The company may not issue acknowledgment on its letterhead under original seal and signature of competent employee.

--"Even before I could respond them, they again sent me letter of termination on & effective from 24th Jul stating I failed to respond the notice or I ignored the same."

As the company has passed the termination order why should you tender notice pay?

As the company has declaring you absconding it must not have enclosed the cheque/DD for notice pay with order of termination and it may not disburse notice pay citing termination as you were declared absconding.

 

“The term “Absconding” might have been mentioned in your appointment letter. Company might have mentioned if employee is absent from work without any intimation/absconds, for…………….days, his services can be terminated.

Or absence from work for……….days would amount to absconding.

In other words; terming the abscondment/desertion as breach/repudiation of contract, or dismissal of employee by employee himself.

Employer does not want to follow process of termination/dismissal and wants to avoid dismissal/termination, and therefore tags the file as absconding/deserting and closes the file. Employer believes and it is a fact, majority of the employees get subdued by the tactics applied by companies, and majority of the employees are ill informed.”

 

 

1 Like

Shridhar Shah (Chartered Accountant)     07 August 2012

Thanks Kumar Doab.

I don't have documented copy / mail of 45 days offer. I had discussed the same with RM & ERM. Also assurance for proper transition was in discussion with RM and it is not documented.

He didnt agreed to any less period than 90 days telling "I am key employee handling crucial work". Though I had been told multiple times by him that "this activity handled by you is not full time activity & you need to concentrate on others too" also "this activity can be done by a B com too".


Even in termination letter they have mentioned -

"We refer to our letter dated July 17, 2012 wherein we stated that your resignation will be accepted by us provided you either serve your resignation notice in writing with three months notice period and report to duties immediatety for completing transition and clearance process to the satisfaction of the Company or serve your resignation notice in writing and pay to the Company basic pay equivatent to notice period, comptete the clearance formatities and make full and final setttement of your dues. You have however failed and neglected to do so."

"ln view of the above we do not accept your resignation dated July 9, 2012 and terminate your services with the Company from the close of the working hours of July 24, 2012. You are requested to contact our Human Resource Department at COMPANY ADDRESS to complete the clearance formatities and make full and final setttement of your dues."


"payments due to you shall be set off against any dues recoverable from you, and all payments are being made without prejudice to the rights of the company to take legal action to recover any such amounts from you."


I do have copies of -

1. T&C of employment signed by me & company HR

2. My mail to RM, his response for discussion & my return mail for accepting resignation as discussed & told by him

3. Mail generated by system for resignation in system

4. Notice sent by company on 17 Jul (posted on 18 Jul & delivered to me on 23 Jul) with cover having PO stamp & Speed post details

5. Termination letter sent by company on 24 Jul (posted on 24 Jul & delivered to me on 27 Jul) with cover having PO stamp & Speed post details

6. My letter of returning ID card (company asset) with photocopies of ID cards. (posted on 26 Jul delivered to location on 30 Jul - as per status track on speed post website)


everything else was discussed in person or on phone. Though I have detailed phone bills, but it doesnot contain incoming details.


The empoyment T&C contains -


"Any un-authorized leave or excess leave by an Employee will enable THE COMPANY to terminate the contract of employment of such Employee for reasons so cited without any further action by THEE COMPANY."

- I had not reported to work after resignation as RM & HR were not confirming notice days. I discussed with them on call but didn't send mail. They never confirmed anything in writing.

"On successful completion of training or probationary period, your services will be confirmed in writing by the Company and thereafter, subject to any other agreement or understanding between you and the Company, either party can terminate this employment agreement by providing a notice period of three months, to the other party. Payment of basic pay in lieu of such notice,to the other party, will be at the sole discretion of the company. During the probationary period for lateral hires, the notice period shall be one month."

- I was confirmed after probation period.

Adv Rohit Dalmia 9324538481 (Lawyer)     07 August 2012

Dear shreedhar,

 

Do you have balance paid leaves which could be adjusted against the notice period? please confirm.

 

Further, in the termination letter from the company on what grounds your services had been terminated? please clarrify.

 

Regards,

1 Like

Shridhar Shah (Chartered Accountant)     07 August 2012

Hi Rohit,


I had 23 balance paid leave.

I am terminated on ground of not reporting to work without RM approval.

They have written -

"Kindly note that in accordance with employment contract signed by you with the Company you are required to serve written resignation notice with three months notice period ("Notice Period") for terminating your employment with the Company or pay to the Company in lieu thereof basic pay equivalent to Notice Period. You are fully aware of this and have also been informed in this regard during your discussion related to your resignation with your reporting manager and Human Resource ("HR") representative on July 10, 2012.You were further informed that you are required to serve the Notice Period for the purpose of ensuring planned transition to a resource identified as your replacement at a satisfactory level as determined by the Company."

"However you have voluntary ignored to do so and have been absenting from duties since July 10,2012, without prior permission and/or intimation to the concerned authority. Your such irresponsible behavior, has hurt the Company financially and potentially made it liable in damages and claims by the Company's client, for failure to ensure an appropriate transition of your services pertaining to the project work you were assigned with as a Executive - Finance."


n.b. I was non billable employee, working in core finance & not working on any project of client. Now they have replaced my position with a resouce.

Adv Rohit Dalmia 9324538481 (Lawyer)     07 August 2012

Dear Shridhar,

 

If the company is adamant and not co-operating with you then you need to act fast. Either you pay them up afetr adjusting 45 days notice which you have served and also you can further adjust 23 days balance paid leaves and clear the issue.

OR

 

You need to reply to their notice through advocate.

ou may call on my cell 9324538481 for legal assistance.

 

Regards,

Advocate Rohit Dalmia

Mumbai.

Kumar Doab (FIN)     07 August 2012

 

 

You have posted that:

I resigned from work on 6th Jul.I resigned in the company system too stating my last working day as 10th Jul.I offered for 45 days, with assurance that the work will be handed over properly & all processes will be in place.

Hope you have assured it in your email mentioned at :

“2. My mail to RM, his response for discussion & my return mail for accepting resignation as discussed & told by him.”

Apparently as posted by you at 4,5 company has not granted any time in the interim to reply and clarify.

“4. Notice sent by company on 17 Jul (posted on 18 Jul & delivered to me on 23 Jul) with cover having PO stamp & Speed post details

5. Termination letter sent by company on 24 Jul (posted on 24 Jul & delivered to me on 27 Jul) with cover having PO stamp & Speed post details”

 

 

 

Your lawyer shall have to find defects in appointment letter; charges leveled by company and related it to the acts and law of the land.

 

 

Company has leveled charges of misconduct:

However you have voluntary ignored to do so and have been absenting from duties since July 10,2012, without prior permission and/or intimation to the concerned authority. Your such irresponsible behavior, has hurt the Company financially and potentially made it liable in damages and claims by the Company's client, for failure to ensure an appropriate transition of your services pertaining to the project work you were assigned with as a Executive - Finance."”

 

Bombay SE Act:

 

бб.Notice    of termination of service.-No  employer shall dispense with the

services of an employee who has been in his continuous employment -(a) for not less than a year, without giving such person at least thirty days' notice

in writing, of wages in lieu of such notice:

(b) for less than a year but more than three months, without giving such perso n

at least fourteen days' notice in writing, or wages in lieu of such notice:

Provided that,  such notice shall not be necessary where the services of such

employees are dispensed with for misconduct.

[Explanation.-For  the purposes of this section, "misconduct" shall include-(a) absence from service without notice in writing or without sufficient reasons for

seven days or more

 

It shall be appropriate to approach a competent and experienced service lawyer with copies of all documents and give inputs in person and let your lawyer evaluate the merits and then proceed under expert advice. The order of termination may cause adverse affect on your reference check and future employment. If the order of termination is called back it shall be beneficial for you.  You may proceed as deemed fit at your end.


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