Resignation without completing notice period
Akshay
(Querist) 20 October 2018
This query is : Resolved
I have received job offer and appointment letter, my previous employer wants me to complete their notice period but i cannot hold as my new employer has given me appointment letter of nearest date. Can current employer hold my gratuity and pf? They have asked me that they cannot provide me relevance as well.
P. Venu
(Expert) 21 October 2018
The company cannot withhold gratuity and PF, but they can take steps to realise the pay for the notice period. It may also result in the company not giving a good reference, or no reference at all.
Guest
(Expert) 21 October 2018
Mr. Akshat,
You have got an exceptional advice from the garbed heavenly body, the Lord Jesus Christ, LLB & LLM qualified and also a Gold Medalist. But, probably his heavenly law school could not get appropriate update on humanly made service laws, he has categorically stated that "PF etc., you won't get."
Since, being a earthly human being, I can't dare to give any tutorial on service laws to the heavenly body that too the Lord Christ, himself having reincarnated again on earth, I reserve my opinion on your query.
Guest
(Expert) 21 October 2018
How long you worked with current employer is not clear and at what level you are working . if less than a year experience certificate not relevant.
PF cannot be touched .
Yes they can deduct notice period salary dues form your gratuity amount
This is practical advise as I have worked in corporate for 35 years in large companies and also as per present laws both
Business world is very small..If you are leaving at senior post without consent of employer some day it may boomerang on you. Try to leave in good relations.Who knows you may need their job again in near future .
Don't bother if offer is better and you feel to get it . Join without delay
Guest
(Expert) 21 October 2018
PS: check up form new employer HR man . They may not insist upon you bringing relieving letter after joining . Never trust employers govt or private .Also keep in mind all bosses know each other and help each other . Without details cant give pinpointed advise but above is broad framework of practice and law both for you to decide by own judgment or advise form a colleague/friend
Dr J C Vashista
(Expert) 24 October 2018
If the employer want to deduct the amount of balance of notice period on pro-rata basis, the company may keep it out of gratuity but not out of GPF.
Guest
(Expert) 24 October 2018
Thanks Dr Vashisat for supporting my observations regarding deductions
Guest
(Expert) 24 October 2018
You may bear in mind, on legal angle, no deduction can be made out of gratuity, but the same can be withheld. You can't claim your terminal benefits until you are officially relieved by your employer. Rather, you can be subjected to disciplinary action for unauthorised absence, if you join the other organization without getting officially relieved by the previous employer after due acceptance of your resignation. So, if you join another organization without getting the issue of your resignation finally cleared, you won't be able to claim even the gratuity dues. So, if any disciplinary action is taken against you by your employer, your employer will be well within his right to forfeit your gratuity.
Of course, PF balance is your money, which the employer can't withhold. May the payment of PF be delayed but can't be withheld indefinitely.
Guest
(Expert) 24 October 2018
Fully agreed with caution of dv dhingra sir. However sir , We at corporate world dont do such extreme things unless candidate is charged of malpractice cheating or misconduct . normally we let them go and close chapter.But your legal observations stand as bench mark i nasty development. I always advise employees as consultant to leave such that we can meet hands and eyes in future .Corporate world is too small.
Guest
(Expert) 24 October 2018
@ Dr. Rajendra K Gupta,
The question arises, why not the employee try to go blot less from his organization to avoid any future risk to his career, if some time any HR authority of the past employer decide to play a mischief at the time of background verification of the employee on requisition from some other employer? Needless to emphasize, a small derogatory remark of HR can spoil his whole career for the future.
Guest
(Expert) 24 October 2018
exactly sir .well pointed out. But guys ar immature mostly. In corporate we meet every one and know each other . He appears to be good worker so they are asking him to complete period. There are many times important information specially in sales to be transferred to person taking over .It takes time. In one case I offered to come twice a week and spend 4 hrs with permission of new employer and did that for one month till things settled down .As exactly pointed out by you and me too reference check is mostly done in big companies if candidate not thoroughly known to bosses. Employers avoid to make bad remarks but many times they may say he left without permission and handing over charge. that is it. His job may go in new organisation. But rare things . I again feel he should join immediately and forget past company. I could give more pointed guidance if his both employers names and business were mentioned..But law is law , and you now it best
Guest
(Expert) 24 October 2018
We can't assume him to be a good worker merely because he has been asked to complete his notice period. In most of the cases the problem for the employer is to arrange for substitute on the spot. The company' first and foremost concern is always not to let their work suffer, which may cause financial loss to the company and in many cases the targets of completion of projects.
Moreover, the querist has not made any mention about the terms & conditions of his employment to know whether he can be relieved by deposit of prorata salary for the period short of notice period or not.
In any case, he has either to go by the terms of his appointment or to get his management convinced for his early relief. Any presumption on the part of the experts is not called for when the querist himself is miser in discussing the problem with specific reference to the terms & conditions of his appointment. If he has some problem that must be elaborated adequately by him.
Guest
(Expert) 24 October 2018
agreed sir. he has not given any details .appointment letter terms , post he is working on ,companies names.These are crucial.Most common clause used is either party can ask to determine this agreement with a prior notice of 1 or 3 months as case may be or salary in lieu thereof .So most employees not covered by labor laws can be thrown out immediately wit full notice period salary payment . At least in private sector. it also happens in contractual appointments in pubic sector and government departments too. Querist though receiving intimation of posts has not further approached or added any information .It is presumed he has left o lost interest any more. So better close that topic
Guest
(Expert) 24 October 2018
One more thing, fresh recruitment for any company is a costly affair and time consuming process. Not anyone coming is recruited without testing his talent to fit for the job requirements.
Secondly, when candidates join the job by readily accepting the terms of appointment, why they feel reluctant in the fulfillment of the accepted conditions of their appointment, while leaving the job. The querist is worried for the gratuity, but does not seem to be ready to pay the salary for the period short of the required notice period? Persons motivated by self interests can never succeed in development of their career.
Guest
(Expert) 25 October 2018
Very nice. Your this last para is a message to our western struck youth .No loyalties. No conduct . Our generation s serious.No more. It is car ,mobile Girl friend .fast buck instability culture of west has fully arrived. very few are like you wish and they do make it great in careers. 90% are not fit to be employed and we catch them during interviewing process itself and find chinks in their personality track of past . Every one wants a beautiful secretary a car ac office big pay check. Cant write a business intro letter . Those who are more modest and humble and serious outpace merit holders in due course. You are right sir, modern candidates only think one way.They have no professionalism. In tis case the company just said okay you leave abut complete notice period as thy have to arrange replacement as always. Any way you message should be taken serious by all wanna be executives.
Guest
(Expert) 25 October 2018
In most of the cases, while legal approach fails, consensus of the superiors pay well the employees to avail the opportunity of career development. But that depends upon his own contributions towards the organization as well as his rapport with the employers.
I remember one case of the year 1972, while working in one organization. In that organisation, due to acute shortage of staff added with harsh working conditions, once an employee entered service would never dream of getting relieved from the organization, as none of the superiors would like to spare the employee with the fear that not only his assignments would suffer, but also in some cases he would also have to spare substantial time even for some operative jobs.
So, knowing very well about the prevailing condition, one of my subordinates, on his selection on a lucrative post in another organization approached me and requested politely that he was quite aware of the shortage of staff, but in the interest of his career, if I would like to spare him for his choice job if he puts up his resignation. He presented his offer cum appointment letter before me, as was received from the other organization as a proof of his selection. Taking due care of his career, I promised him to relieve from his post in time. On my request, his other colleagues and seniors also promised to share his assignment till some substitute would get arranged.
So, if the present query represents his real problem, the querist can get benefited more by mutual consent of his superiors rather than vainly expecting that the law would come to his rescue in any way, as against his service conditions and the prevailing legal conditions about his entitlements.
