Santosh J Mahalkar (Asst Mgr) 22 April 2015

Unilateral waiver of resignation notice period by employer

I was working on the post of Assistant Manager in Quality Assurance dept. in a limited company. Myself & a colleague of mine were promoted from the post of Sr. Exec. to Asst Mgrs, while my salary (CTC) was increased by 22%, my colleague got 100% rise. While all assistant managers were paid CTC in the range of 5.5 to 7.5 lakhs per annum, my CTC was 2.6 lakhs per annum, which was also less than the CTC of Sr. Executives who use to get 3.5 to 4.5 lakhs per annum. So I orally complained about this issue to my HOD. He told me that he will take up this issue with HR dept.

After some days, I was called in HR dept. & they told me that since i was challenging the companys policy of paying the employees, so i should resign & said that i if i wont resign they would file false complaint against me. In a heat of moment i resigned without mentioning resignation notice period on the resignation letter, nor did i wrote about `immediate relieving`.

`I only wrote i am resigning due to personal reasons, so relieve me from my duty`.

The management immediately accepted it. the remarks are`Accepted, & can be relieved with immediate effect`. while as per terms & conditions of appointment, `After confirmation the employee can resign by giving one months notice or payment in lieu of, & the company can terminate your service by giving one months notice or payment in lieu of`.

So if i had not requested for immediate relieving nor did i deposited one months salary for waiver of notice period, as per appointment contract my resignation was to become effective after one month. But by unilaterally waiving the notice period, the company has breached the employment contract which amounts to unfair dismissal.

Also after a week of my resignation, i took back my resignation by email to the company, which was well within the one month time.

So i want your legal advice on below mentioned points:

1) I had not mentioned the word `immediate relieving` nor did i deposited one months salary for payment in lieu of, so technically can i claim that it was just a `notice of resignation`, which was required as per the employment contract?

1) Does unilateral waiver of resignation notice period by employer amount to unfair dismissal?

2) Do withdrawal of resignation before expiry of notice period valid or legally tenable?

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7 Replies

Kumar Doab (FIN) 22 April 2015

As per your post the company did not write "notice period/pay waived off".

Did it adjust notice pay in FnF statement?

Did the company issue/supply acceptance of resignation by competent authority: if yes it was accepted.

Generically speaking:The resignation can not be accepted before expiry of notice period tendered by employee however service conditions should be examined by your Labor Law Consultant/Service matters lawyer/Law firm.

If you were not paid equally you could have claimed equal pay for equal work in writing and should not have tendered resignation with statement as posted by you...................

YOu should have changed to some god company.

YOu can only claim the interpretation as conceived by you, however management wanted to separate from you and it has cornered you, and may be unwilling to take you back, and may dump you in courts of law and courts of law may/may not provide relief.

You can try thru employee’s/trade unions or if you want show all docs on record to your lawyer and lawyer that has examined the docs can advice you on merits and remedies.

Santosh J Mahalkar (Asst Mgr) 23 April 2015

Dear sir, here are the answers to your querry.

1) No. The company did not write remark "notice period/pay waived off".

2) No. The company did not gave me my FnF dues or statement, after taking my resignation at around 12.0 pm, they just forced me to leave the premises immediately & took away my punching card.

3) No. The company did not issue/supply acceptance of resignation to me personally, the remark was not written in front of me, because the remark was signed by VP of company, who was not present at the time of taking resignation. I only came to know about the remark when the company submitted it in labor court. There is no sign of mine on the acknowledgement of acceptance of resignation letter.

4) Dear sir, in no where in my service conditions there is any comment that `the management has right to waive of notice period` in case of resignation. While in case of termination it is written `Only in case of misconduct the company can terminate the services without any notice or payment in lieu of `.

So if it is a voluntary resignation then it should be effective only after one months of notice period as per t&c of contract. If the employee has resigned voluntarally, it was his right & if he has taken back his resignation before completion of notice period it is also his right as can be interpretted from various supreme court judgements.

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

2) Punjab National Bank vs P.K. Mittal on 13 February, 1989

Your valuable comments are necessary.

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Kumar Doab (FIN) 23 April 2015

Your point of view is that you did not resign with immediate effect and you resigned as per clause....................of appointment letter..................and acceptance of resignation was never supplied to you and hence you were never aware it is w.e.f. ..............which date?

Did you attempt to attend to office the day resignation was extracted from you? Were stopped?

Do you have any evidence of extraction of resignation by force, snatching of punch card by force?

Did you write on record that you were forced to resign?

If yes then you could claim it as deemed termination.

You have already approached court of law and have probably consulted your lawyer.

Contest the case based on service conditions,facts on record,merits.

There is a possibility that court may provide relief to you................................depending upon how well the case is contested.

Santosh J Mahalkar (Asst Mgr) 24 April 2015

Dear sir, I did not resign with immediate effect, but i did not mention i am resigning as per clause of appointment letter. Below given are the exact wording of my resignation letter dated 23rd Sept-2013.

`To the plant head`

`Through HOD`

``dear sir, i am resigning form my duty due to personal reasons, please relieve my from my duty.``

I have written through HOD, but he was not present there nor his signature is there on the resignation letter.

The acceptance was never conveyed to me. I came to know about the companys remark after nine months, when the company submitted it in court. The companys remark was on same date:23/09/2013.

No i did not attended duty there after.

No i have no evidence of taking my resignation by force also snatching of attendance card by force. I only have oral evidence of mine, also immediately after my resignation at 12.0 pm, the contractor who was working with me was terminated from company at 2.0 pm, who will depose from my side.

I know proving forced resignation is going to be difficult, but i am going to concentrate my case on the below mentioned grave mistakes the company has committed, due to which there will be no need to prove forced resignation.

Since my case will be ruled by the terms & conditions of the appointment letter, the court shall take decisions as per that only. What happened at the time of taking resignation & on the day the resignation took place shall be important. These were the incidences due to which other activities like me not coming to duty took place.

It is clearly mentioned that the confirmed employee shall resign by giving one months notice or deposit one months payment for notice period waiver. I had not asked for immediate relieving nor did i deposit one months salary, so it becomes clear that as per rules the resignation was to be effective after one month. So if it was to become effective after one month, the company unilaterally waived the notice period, which is a serious breach of contract amounting to unfair dismissal.

After a week i withdrew my resignation, which was well within one months time limit.

I think my biggest problem will be that i had not written in my resignation ` relieve me as per company rules`, but neither i have written that i shall be relieved immediately. So if one goes by the rules, by default the resignation should be effective after one month only.

This is my opinion which may go wrong since i am not a expert in Law. Your advice on my findings will be appreciated.

Kumar Doab (FIN) 24 April 2015

You have full understanding of what has happened and loopholes.

These are to be pointed out and you need to convince the court........................

Apparently the company did not demand notice pay to be deposited by you and did not communicate that that the notice period has been waived off and that your resignation has been accepted with immediate effect.

The onus of proving that VP was available at location on that day falls on company and if you have evidence that he was not in town/office on that day ..... it is good for you.

The witness can be examined in court.

Santosh J Mahalkar (Asst Mgr) 25 April 2015

Thanks sir for all your kind suggestion.

One doubt which haunts me every now & then is that i have not mentioned any thing about relieving date or last day of working or not said relieve me as per company rules in my resignation letter.

I fear how the court will act on this matter?

I have read in many case laws that ``unless guided by any rules of service contract, the resignation given in presentii shall be effective from the date mentioned on it.``

But as per my view, since my service was guided by the rules of contract which clearly states about one months notice period or one months payment in lieu of, the resignation in presenti shall not be effective in my case.

But what the court will interpret of this is a big question??

This point of not mentioning any relieving date in the resignation letter is giving me sleepless night?

Hence kindly advice me as to what shall be the legal interpretation of the following:

a) The words which i have used in my resignation letter.

b) The remark which the company gave on my resignation letter.

Once again i am mentioning the exact wording which i used in the resignation letter.

Date: 23/09/2013

To, the plant head,

Through HOD,

Subject ; resign letter

Dear sir, I am resigning from my duty due to personal reasons, please relieve me from my duty.

While company`s remark is``Accepted & can be relieved with immediate effect``.

Also there is no acknowledgement of mine on company`s acceptance remark.

My personal view is `since we both ie: myself & company, have not acted as per T&C of the appointment contract, it was a breach of contract from both sides, in which case the contract did not come to end as per law, then the contract stands to be in continuance`.

Your view is very much required, since in court it will all come down to what words we both have used in the resignation letter.

Kumar Doab (FIN) 25 April 2015

You have yourself, posted that:

“It is clearly mentioned that the confirmed employee shall resign by giving one months notice or deposit one months payment for notice period waiver. I had not asked for immediate relieving nor did i deposit one months salary, so it becomes clear that as per rules the resignation was to be effective after one month. “

The company did not supply a communication to you on record, that ……………………….your resignation has been accepted with immediate effect and you need to tender one month notice pay.

The company has submitted as per your posts, the resignation was extracted by force , and only one noting on the copy of resignation that it is accepted with immediate effect, and the noting is by VP and VP was not present……………………and the acceptance of resignation was never communicated to you……………..and you have a witness…………………that can be examined.

Has your lawyer suggested filing complaint for forced resignation and deposing the witness for statement that can not be retracted?

Approach a Labor Law Consultant/Service matters lawyer/Law firm worth its salt and contest the matter well.

Decision of court of law is pleasure of court of law.

Don't devote whole time to this case only.Firm up your next venture ASAP also.

Wish you all the very best.