Notice period buyout not accepted
Querist :
Anonymous
(Querist) 02 November 2015
This query is : Resolved
Dear experts ,
I am working in software company in navi mumbai as software engineer. I joined as fresher in june 2014 and neither any person work under me nor report me nor I advise anybody. Now I got a much better offer in Noida , also my home town . My appointment letter with current company reads "either party can terminate service by giving two months notice or the payment for said period. Before relieving you have to complete the assigments pending" . Currently I donot have any assignment. New company asking me to join in one month time and ready to pay for buyout as mention but not ready to extend joining beyond more than 1 week further . I resigned on oct 20 and requested to relieve me in one month and pay for 2nd month, company is not accepting it saying its company's discretion yo accept it or not. They are not adjusting 16 leave also that i have. Manager has become rude to me , and reluctant not to relieve before december 23 , when I asked reason on mail , he is denying saying its management decision , we cannot tell the reason on mail. Though he is telling orally that new resource will come and when i will train him then only they can leave me.What options are available to me ? I live alone in mumbai , being a female , please suggest if I could approach labor commissioner office or inspector under shops and establushent act ? In similar case bombay high court has given decision in employee favour in 2008 . Please see www.dnaindia.com/mumbai/report-hc-upholds-buyout-of-notice-period-1196417
Regards
Sweta
Anirudh
(Expert) 02 November 2015
You have to take legal course. Consult a lawyer in Mumbai (it will be better if you get in touch with the same lawyer who handled the case cited by you). But you have to act fast as your time to join the new company is fast approaching.
Querist :
Anonymous
(Querist) 02 November 2015
Dear anirudh , as the case was in high court and advocates were jamshed mistry , they are very costly and I am not in position to afford as my salary for october is also withheld . Can't I approach labor commissioner office or other concillation officer so as to reach mediation early ? Can't I come under workmen of ida act ?
Kumar Doab
(Expert) 03 November 2015
1. Don't post query as anonymous. If you don't post as anonymous you will get more responses.
2. From your query it can be construed that you have been reading and it is good. An employee should be properly informed.
There are many threads on similar query in Experts/Forum section and you can read thru search option.
3. Does this company also has an office at Noida/your hometown?
4. After a moment you have the discretion to stop communications by email and send letters by Redg. Post and demand reply by Redg. Post only under original seal and signatures by hand of competent employee.Mention your proper address. Record all calls/meetings (audio/visual/minuted/witnessed) address with pin code.
Address all communications to good offices of appointing authority,MD,Chairman now....................and narrate all previous representations properly.Remain amiable and gentle.
5. IT/ITeS/BPO/KPO companies in Maharashtra are covered by Bombay Shops and Estbs Act, and you should be covered by the def. of 'Employee' as in this Act and as 'Workman' as in ID Act.
Sec; 38-B of the Act lays down that standing order shall be applicable if no. of employees is 50 or more. If standing orders are not certified then Model Standing Orders shall apply, and section 13 lays down the notice period as NIL during probation period and 30 days after confirmation.
Sec; 66; lays down notice period as per length of service and is max.30days.
These are enactments/statue/instrument of law and shall prevail upon any TC inserted in any private agreement/rule/policy drafted by employer and signed by law.
Labor official and courts of law accept the enactments and declare the private agreement/rule/policy VOID.
6. BY the T&C in appointment letter also the notice pay in lieu of notice period is applicable and no Manager or employer can breach its own policy.
7. You may without fail mention that.......................NO tasks/assignments are pending at your end and routine duties be assigned that can be completed on day to day basis within and upto expiry of notice period tendered by you i.e ...............days .............ending on dated............and to whom you should handover the charge, under proper acknowledgment on the spot.
8. Maharashtra has many enactments, practices to prevent unfair labor practices................e.g; MRTU,PULP,..............PAMS........... and unions have traditionally been strong.
IT/ITeS employees have formed many unions and have affiliated with trade Unions like CITU/INTUC/AITUC/BMS etc...........
You can approach them.
You can on your own/thru unions/thru labor Law Consultant............approach:
Inspector appointed under Bombay Shops and Estbs Act
Higher Officials of Dept. of labor
O/o Labor commissioner
Querist :
Anonymous
(Querist) 03 November 2015
Thanks , Doab sir
1.Sorry , this was my first post so could not get that point of posting as anonymous
2.thanks for recognizing. I have gone through many threads but still have some confusion.
3.this company have office only in mumbai and hyderabad.
4. Okk sir , i will do it today itself , also I talked to head HR. And he had replied to me the reason that a new person is being appointed and I will tranfer knowledge then i can go , they are trying their best to bring new one soon .
5.I called labor office yesterday but they said I donot come under worker as I am software engineer though I told that No body works under me.But if you are sayingg , I will be heading to labor commissioner office tomorrow in person and meeting senior official
6.in appointment letter , it is mentioned as I narrated , but they showed me their HR POLICY on portal which mention notice period buyout and leave adjustment needs functional head approval , but I have never seen this before.
7. Manager have replied on my resignation thread that they will be relieving me on 20 dec i.e. After two months before that not possible , i have asked reason below that they did not replied. I will ask HR on that thread only. Please complete the formality before 20 november of handing over responsibilties and others, if any , and please let me know the amount for 30 days remaining notice so that I can submit DD on time for the same.is it okk ?
8. Please let me know how to contact these unions, i donot have any idea at all.
Regards sweta
Kumar Doab
(Expert) 03 November 2015
4. Minute all discussions from personal email id or download all communications to personal email id or print or attach everything in printed form with letter thru Redg. Post as later your access may be blocked anytime and company may not bring anything even in court of law.
Narrate that they are installing (avoid trying to recruit)another person in your place and emphasize that you are affirming to handover charge within LWD (dated...........) to anyone and HOD may take charge, under proper acknowledge on the spot.
If you can refer someone internal/external...............and mention that subject to acceptance by company.
5. It is a strange reason that software engineer is not covered as 'Worker'.
I have pointed out about coverage of 'Employee' and 'Workman' in two different Acts, as mentioned above.
You may approach Inspector,Chief Inspector under both.
6. Is it mentioned in appointment letter or any other document that your service conditions shall be governed by HR policy and/or that HR policy is attached or placed at say employee portal etc?
If you have never been supplied with the printed version then deny in writing that HR policy was ever supplied to you alongwith appointment letter or later.
The company shall compute earned salary with all heads, bonus,leave encashment, incentives,reimbursements, all payouts etc and adjust notice pay in FnF statement, and arrive at final amount payable by you or payable to you............. and supply service certificate,relieving letter, Form 16 as per correct FnF statement, salary slip of all months (download also),PF a/c slips of each year,ESIC card, NOC/NDC,handover of charge etc..........
You may demand FnF statement, soft copy and hard copy both.
You may mention notice period as per Bombay Shops and Estbs Act;Sec66, Model Standing Orders;Sec13 or mention that correct notice period as per Acts applicable be applied............and correct FnF statement be supplied.....in as many words or in language that is suitable to you. You must remain amiable,gentle and maintain rapport,goodwill, and avoid conflict-head on.
Mention that NO tasks are pending at your end so that the current employer does not succeed in claiming loss due to abrupt termination by you as resignation is not accepted and does not declare you absconding/absenting/abstaining.
It shall be appropriate to request to allow you to examine your personnel files...................in gentle manner.
7. If the employee is retiring by notice of resignation/resignation then LWD shall be chosen by employee and not employer............and LWD chosen by employee can not be preponed/postponed unilaterally by employer.
You have the option of preparing your own FnF statement and ask the Head-Hr, appointing authority to check and confirm if it is correct......................Here the catch is notice period 30 or 60 days as per the Acts.
You have the option of sending cheque/DD for notice pay, however tactfully you may mention that subject to correct notice period/pay applicable to you and demand acknowledgment on the spot and ask to compute it in FnF statement.
8. There are many IT/ITeS female employees unions as well...................and trade Unions like CITU/INTUC/AITUC/BMS etc...........
You may search at Google or ask around.
Shiv Sena also launched its IT wing for IT employees.
YOU MUST WRITE TO NEXT EMPLOYER THAT CURRENT EMPLOYER IS UNWILLING TO ACCEPT RESIGNATION AND SUPPLY ACCEPTANCE OF RESIGNATION,SERVICE CERTIFICATE,RELIEVING LETTER,noc/ndc ,FnF STATEMENT ETC AND YOU CAN'T SUPPLY UNTIL THESE ARE SUPPLIED TO YOU AND YOU SHOULD NOT BE TERMINATED IF THESE ARE NOT SUPPLIED BY YOU AND YOU SHOULD BE ABSORBED ON THE STRENGTH OF COPY OF RESIGNATION BY EMAIL ONLY......
GET THE NOTICE PAY MENTIONED IN FnF STATEMENT OR YOU MAY SUBJECTED TO DOUBLE TAXATION...............SINCE NEXT EMPLOYER IS BUYING NOTICE PERIOD.
Querist :
Anonymous
(Querist) 03 November 2015
Thanks sir , 4. I have forwarded every communication on my personal id . Yes one person in my team is available to take charge of mine , i will mention him,
5. I was not asked either in writing or ellse to go through hr policy on portal.
6. I should meet the inspector under shops and establishment act or assistant labor comiisioner directly ?
7. I tried but did not found any contact for it wing of shiv sena or any. Other. If you have the contact please provide me.
Though new company is ready to accept me without relieving , i may need it in far future. If i leave on required date even if current company donot provide any document after my request, will it be possible to get all those later through court of law ?
