Salary in lieu of notice period
ANSARI IMTIYAZ AHMED
(Querist) 07 July 2014
This query is : Resolved
I am working in a MNC company, manufacturing industrial equipments in state of Gujarat for last 17 years. I quit my job as GM-sales, on 13.05.14 by giving email notice for period of 3 months. Notice period of 3 months is required as per revised company policy announced in Jan 14. Now company wants to relieve me early effective 1st July. They told me about it verbally in June last week and have sent statement by email saying it is full and final settlement on 02.07.14. They have collected my laptop in last week of June, and I am not attending office from 01.07.14 ( I work from home and my office is my home ). They have not given any thing in writing about their intent to relieve except F & F statement by email. In this statement, one part is lump sum amount given as notice pay beside other amounts like June salary, leave encashment. Company is not giving breakup of notice pay as to what is included in it and TDS, PF etc deducted. I specifically wrote to HR person who sent me statement and asked him whether the notice pay includes benefits. They just keep repeating it is as per policy and are refusing to provide even breakup of notice pay. From the amount stated in statement for notice pay, it is very clear that it does not include benefits like HRA, conveyance allowance, telephone allowance, medical allowance, other allowance, LTA.
Questions I have is ;
Am I entitled to above benefits for remaining part ( 01.07 to 12.08 ) of notice period or not ? My argument with them is that these benefits I would have earned any way, had I been working during the full notice period. So if they want to relieve early they would have to pay full salary with all benefits which I would have earned while working during this period.
Is company right to force me to accept early relieving ? ( I remember having seen your one reply in forum that Supreme Court ruled that employee shall be allowed to serve full notice period. Please confirm ) I do not want to get relieved early since I planned to join another company in October only. I have told company that if you want to relieve me early you will have to pay me full salary with all benefits in lieu of balance notice period. They have not communicated that they are relieving me on 31.06, neither I have signed / written any thing that I accept their relieving me early.
Company has never issued any policy to us which say that company is not required to pay benefits in this situation. I have checked my appointment letter, confirmation letter etc.
Am I right to ask for breakup of notice pay ? Is company not obliged to tell what is deduction they have made towards PF, TDS, professional tax ?
Am I not entitled for other benefits like PF, gratuaty and superannuation for period 01.07 to 12.08 ? Thgese I would have earned had I been working during this period.
Please some how tell where on this website I will find answer to these queries. My email ID is izahmed2002@yahoo.co.in ; 8879824330
Regards,
IMTIYAZ
Kumar Doab
(Expert) 07 July 2014
You are right that such judgments have been shared in many threads.
Your lawyer can cite many more as per facts of your case.
HR is not your employer.
He/she is just another employee in the company like any other employee.
He/she is entrusted with tasks of processing the resignation, FnF, PF, Gratuity etc……………..and that he/she has to perform fully.
If he /she are not doing then you may escalate.
HR might have inserted minutes of telephonic/verbal…………….. information/discussion with you about you being relieved on dated……………………and claim it as a matter on record…………………….hence counter it on record.
The company can not postpone and prepone the notice period tendered by employee.
You can ask good offices of appointing authority, MD that you want to serve full notice period and good offices should let you serve full notice period,and Mr/Ms…………………….has collected……………………from you on dated…………………and asked to WORK FROM HOME AND DO ONLY THE TASKS COMMUNICATED BY …………………………SAY PHONE/EMAIL …………. OR REMAIN AT HOME AND YOU HAVE BEEN DOING THE WORK FROM HOME…………………SUBMIT WORK REPORTS……………..
It is entirely your choice to accept notice pay in lieu of notice period or not and even claim liquidated damages if you feel that you have suffered loss……………………..
IN case you are entering into any private agreement on notice pay in lieu of notice period then you can communicate your T&C on it………………………………..e.g. PF, Gratuity contribution to be computed in penalty/award/compensation…………….
Since you are working you are entitled for all amounts that you have been getting in pay package.
It is choice of the company to station you at your home……………..
Submit minutes of all discussion of everything deftly and build written record.
If situation demands it, record all calls and meetings (audio/visual).
You can decline to accept the FnF statement stating reasons……………………………as noted by you and demand explanation ………………………on points noted by you and if HR is not supplying it escalate……………….
What notice pay company recovers/has tendered to employees that it has terminated.
You are entitled for Gratuity and can submit FormI one month before effective date of resignation. If the Gratuity fund is managed by some FI e.g. LIC then you can demand payment certificate issued by LIC and funds paid by LIC to employer from your Gratuity fund a/c…………………….employer can not keep a penny from such funds even if the payment of Gratuity by formulae of calculation of Gratuity is lower than funds disbursed by LIC.
If it is an Industrial Establishment and factory Act applies look into it and if your office is redg. under Shops and Commercial Establishments Act look into it..................and if it has its certified standing orders that covers your designation………………….then service conditions like notice period/pay shall be governed by it and it shall prevail upon T&C inserted by employer in appointment letter or any other private agreement that employer might have signed with you………………
Assuming that none of it applies to you the service conditions shall be governed by service rules and regulations mentioned in appointment letter………………..
If there is no such policy ever framed or communicated by employer what shall be the notice pay then gossip, rumor and hearsay can not be policy……………….
Raise your demands, acceptance, declinature in a gentle tone………….of course under proper acknowledgment.
IT shall be appropriate to show all docs on record to a competent and experienced Labor Consultant/service lawyer in person and proceed under expert advise of your lawyer………..
ANSARI IMTIYAZ AHMED
(Querist) 08 July 2014
Dear Sir,Thanks for detailed response.
Please provide link to any such SC judgement if you know already.
Please suggest any competent and experience lawyer in Mumbai. I stay at central suburbs near Ghatkopar.
HR head threatened politely " donot debate " and " as per company policy company need not pay you even basic salary ". In reply I have sent definition of salary in lieu of notice period as available on wikipedia. I have sent email to MD requesting his consideration on my case. I will wait for company reply. Company tenders basic pay in lieu of notice period in case employee is terminated. Since it is industrial manufacturing plant it must be covered under factories act. It is also registered under MSMED act. ( Micro, small, medium enterprises act ). I believe it is not registered under shops and commercial establishment act.
In appointment letter or in notice period clause, there is no wording or description or mention of notice pay / salary in lieu of notice period for employee who has resigned, also there is no mention that company can relieve such resigning employee early.
Please suggest name of one or two competent and experience lawyer in Mumbai, if possible in central suburbs.
Regards,
T. Kalaiselvan, Advocate 
(Expert) 09 July 2014
as advised by above expert, it is better to consult a local labor law practicing lawyer for further advise on the subject issue.
ANSARI IMTIYAZ AHMED
(Querist) 10 July 2014
Dear Sir,Thanks for detailed response.
Please provide link to any such SC judgement if you know already.
Please suggest any competent and experience lawyer in Mumbai. I stay at central suburbs near Ghatkopar.
HR head threatened politely " donot debate " and " as per company policy company need not pay you even basic salary ". In reply I have sent definition of salary in lieu of notice period as available on wikipedia. I have sent email to MD requesting his consideration on my case. Company tenders basic pay in lieu of notice period in case employee is terminated. Now company has replied that same basic pay will only be given to employees who have resigned on their own. I believe this is unfair to offer basic pay only, to those who have resigned on their own. Those who resigned on their own and those are terminated are not same. The company email regarding notice pay / notice period does not mention that those who resigned can be relieved earlier during notice period. So if I refuse to accept their relieving me earlier, what action they can take against me ??? Sir please guide me.
Since it is industrial manufacturing plant it is covered under factories act. It is also registered under MSMED act. ( Micro, small, medium enterprises act ). I believe it is not registered under shops and commercial establishment act since our office is in factory.
In appointment letter or in notice period clause, there is no wording or description or mention of notice pay / salary in lieu of notice period for employee who has resigned, also there is no mention that company can relieve such resigning employee early.
Please suggest name of one or two competent and experience lawyer in Mumbai, if possible in central suburbs.
Regards,
Rajendra K Goyal
(Expert) 11 July 2014
Citation / judgement not provided in this section.
For reference of competent lawyer, search LCI database or google.
