Not service 3 months notice period in a pvt. ltd company
Prashant Malik
(Querist) 20 May 2014
This query is : Resolved
Hi All,
I am in a situation where in I have an offer letter from a company who wants me to join in 40 days and the company where I am working has a 3 months notice period.
There is a clause in my appointment letter and seperation policy that if an employee does not serve the 90 days notice period, he/she will be asked to furnish the salary for the period. There is another point mentioned in the appointment letter that any reduction in notice period is employer's discretion.
My only point is that If I don't join my new employer, I will have to forego the offer as they can't wait for 90 days. They are even willing to bear the cost and will buy out notice period amount. I have communicated the same to my old employee, however they say that we can't release you early.
As per my understanding they can't decide my future carrer prospects and cannot hold me back on their will. I understand that there is a policy in place which has both options either pay the notice period amount or serve the whole 90 days.
I just want to hear some expert comments on this situation.
Regards
Guest
(Expert) 20 May 2014
Your query is quite premature, if you have not yet served notice for your resignation, Unless you send resignation notice and get response from the company, how can you anticipate any problem?
So send notice, ask for the amount to be deposited for the period short of prescribed notice period, and wait for response of the management.
ROHIT SHARMA
(Expert) 20 May 2014
1. You must understand the situation.
2. The terms and conditions need to be fulfilled.
3. If you can pay the notice period amount then you can resign immediately and join your new employers or else you just forget about joining the new employers.
Prashant Malik
(Querist) 20 May 2014
Mr. Dhingra
Let me give you a bakground so that you understand my query.
I am already serving notice and have multiple rounds of discussions with my supervisors. They have come back saying that I will acknowledge the resignation however the last working day would be the 90th day.
I have categorically told them that I would not be able to serve the whole 90 days and ready to bear the cost of the remaining period.
The company will let me know the F&F amount once the 90 days expire and my intent is to pay the amount then and get a relieving letter then.
I have also started my handover since they know that I will not be coming to office after the LWD that I have mentioned.
My only concern was that what status will they show in their records for the remaining days for which I have not served the notice as I would have already joined the new employer by then.
Guest
(Expert) 20 May 2014
Long description with hazy picture of the case can't make any sense to form a proper opinion. Earlier also you could not give clear background. Now also you have presented a hazy picture.
What do you mean, I am SERVING notice. That does not provide clear picture whether you have already served notice with some specific date stipulated for your resignation or you are still to serve notice. So, how anyone can say what status they will sho in there records, when you have not indicated whether you have given a very specific date of effect of your resignation.
However, if you have not given any specific date of your resignation to be effective and they do not convey their written approval about acceptance of resignation, they can show you on unauthorised absence after the date of resignation, but that can be proved legally invalid at later stage.
There is no use in holding discussions with the management. Continue with creating evidece in your favour with written communications with reference to your resignation notice vis-a-vis the terms of your appointment.
Kumar Doab
(Expert) 20 May 2014
>>> One good thing is that your prospective employer has agreed to compensate you for notice pay that you are likely to suffer from current employer.
But this is not sufficient.
First of all you should take your next employer in confidence otherwise you may land in trouble at the hands of both current and future employer.
YOU may (preferably in writing) point out to next employer that during interview you has informed that notice period inserted in appointment letter issued to you by current employer is 90days (and you need joining time of 90 days) and in offer letter issued to you by M/s…………………is 40days only.
The current employer is unwilling to accept notice period of 40days and may not issue acknowledgment, acceptance of notice and resignation and may not issue service certificate, relieving letter ( and may even post adverse comments…………….) and you can not supply these until these are supplied to you by current employer.
And conclude that you should be absorbed without need of any such document from your end and on the strength of copy of resignation, POD only.
The current employer and future employer both may have a published policy, or practice to allow joining time of 40days to incoming employees and 90 day’s exit time to outgoing employees to suit its self centered interest.
Such policy and practice is detrimental to the employability, interest of employee(s).
To defend your interests settle the matter preferably in writing with future employer.
>>> The extract of the separation policy posted by you is ‘If employee initiates separation by resignation’!
What is the policy if ‘Employer initiates separation by termination’?
Is it stated that ‘any reduction in notice period is employee's discretion” Implying that employee can serve full notice period and reject notice pay in lieu of notice period?
Contract of employment should promote equitable discretion or it can be termed arbitrary.
>>> Do not forget to state in notice of resignation/subsequent communications that NO Tasks are pending at your end as on date and routine duties be assigned to you that can be completed on day to day basis within and up to expiry of notice period /effective date of your resignation/last day-date in office ……………….i.e dated……………….. tendered by you vide notice of resignation dated.
>>> The notice period/pay that is part of service conditions is NOT dependant upon the T&C inserted by employer in appointment letter drafted by employer, alone!
The service conditions are stated in and governed by Standing Orders applicable to the establishment (Certified/Model) and extended to the designation of employee, ( Name of the State) Shops and Commercial Establishments Act…………….and various enactments applicable to the establishment.
The notice period of 90 days may not be necessarily applicable in your case.
THERE ARE MANY THREADS ON SIMILAR QUERIES THAT YOU MAY FIND RELEVANT AND YOU CAN DOWNLOAD JUDGMENTS BY SUPREME COURT AND FULL BENCH THAT AWARDS FINALITY TO THE MATTER………………. E.G.:
http://www.lawyersclubindia.com/forum/Whether-notice-period-has-to-be-given-during-probation-91808.asp#.UwDFP0eBmXU
{---- Neither Agreement nor and appointment letter can override the standing orders. }
http://www.lawyersclubindia.com/forum/details.asp?mod_id=85821&offset=1#.Uf4_JNKAqWM
http://www.lawyersclubindia.com/forum/Notice-period-102337.asp#.U3t7pkeBmXV
http://www.lawyersclubindia.com/experts/Joining-without-relieving-letter-from-previous-company-472656.asp#.U3t4bkeBmXU
Designation alone does not decide that employee shall be covered as ‘Workman’ as in ID Act, ‘Employee’ as in Shops and Commercial Establishments Act .
Your Labor Consultant/service lawyer may ask you a set of structured questions and may opine that you are covered, and that you can raise a dispute NOW.
>>> What is this establishment: Commercial, Industrial, Small Enterprise?
You are located in which state?
The Redg. office of the establishment is located in which state?
What is the trade of establishment e.g. IT/ITeS, banking etc………….
How many people are employed in it?
What is your designation and nature of duties?
Since how long you are working with this establishment?
How did you tender notice of resignation e.g. by letter, or thru email or by some software or resignation tool, and do you have copy and proper acknowledgment?
The resignation was addressed to whom and did you mention the notice period being tendered by you?
DO you have copy of the HR policy, service rules and regulations reference of which is quoted in appointment letter?
It is usually stated that employment shall be governed by HR policy, service rules and regulations.
YOU have a right to obtain these and concerned HR personnel or employer is duty bound to supply these to you.
These may be available at shared HR portal, or you may demand from employer.
The above information shall help you. Hence post it.
>>> The resignation can be without permission and notice.
The notice period tendered by employee can’t be preponed and postponed by employer.
>>> Your supervisors and HR personnel are not your employer. They are just another employee in the company. None of them is probably empowered and made competent by board of the company to accept or reject the resignation.
Probably all of your discussions are verbal and are not recorded (audio/visual) and not even minuted by you. Hence these may be difficult to be proved on record and thus may not be useful to rescue you.
>>> If you have started the handover then record it in writing with a copy to you, and obtain proper acknowledgment from the personnel designated as your replacement and taking handover of charge.
>>> They may show you as absconding/abstaining/absenting.
Hence it is imp. that you build proper written record under proper acknowledgment.
AFTER GOING THRU YOUR POSTS IT IS SUGGESTED THAT YOU SHOULD CONSULT A COMPETENT AND EXPERIENCED LABOR CONSULTANT/SERVICE LAWYER NOW!
