Such maters are best resolved by applying goodwill, rapport, exceptional levels of persistence, persuasion, negotiation, reasoning skills. Skills can be acquired.
Employee should grant full opportunity to employer and at the same time build favorable and written record for use at appropriate time in appropriate forum.
You have posted that:
-----“with three months’ notice from your side and one month's notice or pay in lieu thereof from the company's side.”
Even if you have affixed your signatures the contract drawn and drafted by company does not promote equitable discretion and may get termed as arbitrary.
It is general law that whenever there is any ambiguity in terms of contract then benefit of doubt will given to party who doesn’t make the contract.
Of course company would scream that you have accepted the terms by your free will and it is bilateral agreement.
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.
This arbitrary clause hampers your interest in securing another and better opportunity when it arises.
45 days period is more than sufficient for the employer to put his house in order, designate replacement ( internal/external) ensure handover of charge, complete exit formalities……………………
If the task/company property of the Employee that has resigned are not properly handed over due to which the Employer may suffer financial or any other loss and if the Employee is not interested to indemnify/compensate the employer then employer may ask Employee to serve full notice period.
You should structure and draft notice of resignation carefully and without fail conclude that no task/assignment is pending at your end (keep evidence) and routine work may be allotted that can be completed within and up to expiry of notice period/last date in office and to whom you should handover the charge/company property under proper acknowledgment.
If you are aware to who the charge is to be handed over (usually HOD or designated replacement) do that and obtain acknowledgment and NOC/NDC.
If the replacement is to be trained do that and obtain acknolwedgment.
Gross salary should mean; Monthly Allowance Category
Ideally notice pay should cover Basic+DA as employer would encash EL, disburse Gratuity, PF, OT etc at this rate………………..
---------“Can they really held my experience and relieving letter?”
Who can stop an adamant and recalcitrant employer?
Relieving letter signifies that nothing is pending at the end of employee.
If employee has no pending tasks, has affirmed to handover the charge, notice pay is to be adjusted in FNF statement, then there should be nothing left as pending……………at the end of employee………………..
If nothing is pending then all pendencies including but not limited to supply the service certificate, relieving letter is at the end of employer or its concerned HR personnel……………
Company has already stated in appointment letter that notice pay can be recovered/adjusted in FNF statement/settlement……………………
Let the company adjust and reduce the FNF amounts and show the recovery in FNF statement, and issue Form 16 accordingly.
Notice period is stated in job advertisement, service rules, service conditions/standing orders, appointment letter, employment contract, Shops and Establishments Act……………….
The service conditions stated in standing orders can not be negated in appointment letter and standing orders shall prevail upon appointment letter. If notice period in standing orders is 1 month it can not be 3 months in appointment letter.
If payment of Wages Act applies to the establishment, standing orders would apply.
Kerala has issued notification that standing orders shall apply to all commercial establishments.
In the absence of certified standing orders Model Standing Orders shall apply.
The notice period in standing Orders, Shops and Establishments Act is not more than 1 month.
If both are applicable to the establishment then can’t 90 days notice period be termed void?????
Exceptionally long notice period of 90 days is obviously for the benefit of employer.
e.g;
The Delhi Shops and Establishments Act, 1954
30. Notice of Dismissal: (b) Notice or wages in lieu thereof under section 30—When to be given?
A plain reading of section 30 of the Act would make it clear that whereas the notice of one month under sub-section (1) is for the benefit of the employee, the notice under sub- section (2) is for the benefit of the employer.
And
(a) Applicability of section 30
The protection of the provisions of the section is available to all persons who fall within the definition of the term “employee” as given in section 2(7) of the Act and who have put in three months’ continuous services. In the absence of any standing orders or any contract between the employer and the contesting respondent containing any particular terms or conditions, the conditions of service of the employee relating to his employment in an establishment at Delhi are covered by section 30(1) of Delhi Shops and Establishments Act…………………..
