Service law
Nicks
(Querist) 16 January 2014
This query is : Resolved
Dear Members,
Need your suggestions on below;
I am working with company for 16 months and put-up papers giving 1month notice and informed I will be ready to surrender 1 months’ salary in lieu of notice. Company denying issuing me reliving letter and also not issued any acceptance to my resignation mail.
Following is exit clause in appointment letter:
Either party shall have the right of terminating the employment by giving other party one months notice in writing during the trainee / probation period and two months notice in writing after confirmation of your employment. No leave shall be admissible during the notice period, and any leave to your credit at the time of your separation cannot be adjusted against the requisite notice period. Notwithstanding above, company have right to terminate your employment serving notice in event of any misconduct or at any time by paying salary in lieu of deficient period of notice at discretion of management.
I have also asked company that I will serve extended 14days as allowed by future employer, but still not issuing acknowledgement to my resignation mail. In light of this:
1. Is it right on part of employer not acceptance to resignation?
2. Will in current situation my exit even after serving 1 month 14 days be considered as absconding?
3. Does only mail amount to valid resignation?
4. The possible course of action to protect my interest as future employer not allowing period more than 1 month 15days?
Dr J C Vashista
(Expert) 17 January 2014
Have you been confirmed by the company, if yes it is 2 months notice, if still in training/probation it is one month, as mentioned therein the appointment letter.
1. The employer may reject/not accept resignation due to some reason(s).
2-3. Yes
Rajendra K Goyal
(Expert) 17 January 2014
Better you should have tendered your resignation in writing after receiving the acknowledgement. Your notice period depend upon whether your probation period is over or not.
Better try to have amicable solution and peaceful good bye.
R.K Nanda
(Expert) 17 January 2014
NOTHING MORE TO ADD.
T. Kalaiselvan, Advocate
(Expert) 17 January 2014
While considering your future career for which this relieving letter will play a major role, you should try for some amicable solution instead of taking a legal route. You should have given the notice in writing to the management instead of the email resignation. Even now it is not late, try for some solution within.
Nicks
(Querist) 17 January 2014
Dear Sir,
Thank you very much for valuable replies.
I will try for solution with HR.
Can company rejects to issue acknowledgement to my resignation mail even after serving the 2 months notice.
Kumar Doab
(Expert) 20 January 2014
>> Such matters are best resolved by applying goodwill, rapport, persuasion skills.
This shall be the quickest and easiest solution.
However while you are trying with HR build some favorable record in writing preferably by letters thru redg. post or emails from personal email id opr arrange to download and copy the email from officials email id for record.
Later although the employer is custodian of record it may not share anything with you.
HR is bound by Employer’s policy for HR. There is a possibility that it may not provide any relief to you.
Therefore you may escalate to good offices of appointing authority, MD, Chairman......................highlighting your contributions, and let them designate any one in writing to interact with you.
> Take next employer in confidence.
Inform next employer preferably in writing that current employer may not issue relieving letter, acceptance of resignation due to shortfall in notice period due to less joining period offered by next employer and you can only produce notice of resignation, proof of dispatch and shall be able to submit acceptance of resignation, service certificate, relieving letter if and only if and as and when supplied by the current employer and his appointment should be based on these terms.
This shall be another quickest and easiest solution.
This is important since next employer is getting benefited by your joining without providing you sufficient time, as per notice period with current employer which you should have informed during interview and should have written in employment application too.
Many of the employees commit this blunder by writing in employment application that they can join in .....................days or even...................immediately.
>> Are you from IT/ITeS industry and have you registered your profile in NSR?
Abscondment is misconduct and employer has to follow the process and procedure applicable in case of misconduct as per standing orders, service rules applicable to the establishment.
>> As pointed out by Dr. Vashista you have not clarified whether your service is confirmed or not in writing?
If you are not confirmed then notice period is 1 month as per extract of appointment letter posted by you.
>>You have sent resignation by email, you can send signed copy by redg. post.
While you send by redg. post you can type it on inland and send by redg. post and obtain delivery report (FREE under original seal and signature of sub/postmaster) and certified copy of run sheet of postman by paying a fee of Rs.10/ to post Office.
You have later “asked company that I will serve extended 14days”.....................Have you stated so in writing.
This alters the notice tendered by you.
If you are not getting reply to your email then you can submit reminders and also ask for an appointment/meet in person or meet without appointment, the appointing authority and later submit minutes of discussion in writing under proper acknowledgment..................................and thus building written records that would support you later.
Address and supply all of your communications to good offices of appointing authority, MD..........
>> You may mention in notice of resignation and subsequent communications that no tasks are pending at your end and to whom he should handover the charge and from this day onwards routine duties that can be completed on daily basis should be assigned within and up to expiry of notice period/last date in office i.e dated...........................
1 month or 1 month 14 days by all counts is sufficient for employer to put his house in order and designate an employee for handover of charge. Charge can be handed over to HOD.
>> For applicability of Notice period and service conditions you may look into standing orders applicable to the establishment (Certified/Model) and extended to your designation.
Standing Orders shall prevail upon any private agreement that employer has signed with employee e.g; appointment letter, contract of employment etc...............................If notice period in standing orders in NIL it can’t be even 1 day in appointment letter. Employer PERSONALLY is held responsible for faithful observance of standing orders.
Standing Orders (has).............. provision by virtue of which an employee under the ...................(employer) of his own accord can go out of employment and give up his office. Hence the process of going out of office can be equated to.................................... resignation.
Therefore before believing that notice period of 90 days is applicable in your case ..........................you may obtain and examine (Certified/Model) Standing Orders applicable to you.
If standing orders are not applicable in your case the service conditions including notice period, notice pay may be as per appointment letter, service rules and regulations........................................therefore do not look into appointment letter alone.
Supreme court dealt with a rule which in tenor is similar to clause............. of the present Standing Ordered and the Supreme Court pointed out that the servant by giving notice in accordance with the rule, has unequivocally informed the ...........(employer) that he has terminated the services with the .........(employer) and that put an end to the services....................
Thus it can be claimed that......................Employer does not have the power to accept or reject the resignation.
>> Resignation can be without permission or notice.
“Notwithstanding above, company have right to terminate your employment serving notice.............................................. at any time by paying salary in lieu of deficient period of notice at discretion of management.”
The employment contract should have equitable discretion for both employer and employee.
Thus like management’s discretion (salary in lieu of deficient period of notice at discretion of management) employee can also tender salary in lieu of deficient period of notice at discretion of employee.
If the T&C are vague employer is responsible for it.
If employer states that employee can not tender notice pay in lieu of notice then it should have stated so in the appointment letter in explicit terms.
If it is stated in explicit terms even then equitable discretion shall apply.
Contract of employment should promote equitable discretion for both employer and employee.
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.
There are many threads on similar queries that you may find relevant and you can fintune your representations as suitable to you e.g;
http://www.lawyersclubindia.com/experts/Resignation-not-accepted--446951.asp#.Utvqn9K6aXY
http://www.lawyersclubindia.com/experts/Resignation--446881.asp#.UtrCUNK6aXY
http://www.lawyersclubindia.com/experts/Left-job-without-serving-notice-period-any-legal-action--447186.asp#.Utq6_tK6aXY
http://www.lawyersclubindia.com/experts/Harassment-by-employer-447551.asp#.UtrBBdK6aXY
http://www.lawyersclubindia.com/forum/Need-to-understand-the-notice-period-law-95837.asp#.UtrBXtK6aXY
http://www.lawyersclubindia.com/experts/not-serving-notice-period--447391.asp#.UtrBg9K6aXY
>> You may request to supply you the acknowledgment of notice of resignation, acceptance of notice of resignation immediately and acceptance of resignation, service certificate, reliving letter, correct FNF statement for verification and acceptance, Form 16 as per correct FNF statement, Payment of FNF dues by abnk DD only, PF number-a/c slips for whole tenure of service, salary slips of all months of employment, NOC/NDC, ESIC card, FormI for Gratuity, Group Insurance Number and I. Cards, Health Insurance Number and I. Cards etc within and up to the close of office hours of last day in office i.e. dated.....................by redg. post only.
At an appropriate time you may request the good offices to allow you to examine your personnel file maintained by the company, service card......................
You are apprehending a dispute therefore it shall be appropriate to approach now and spend quality time with a competent and experienced labor consultant/service lawyer, show him all record and proceed under expert advise of your lawyer.
