Early relieving from employment

I think you are following the right course ... in case of problem you can write to adv.gokhale@gmail.com

• Both the employee and employer are normally entitled to a minimum period of notice on termination of employment.
• Notice periods should be one of the main terms and conditions of employment and included in the employee's written statement.
• It's always best to write out any form of notice to make it clear it is the termination of employment.
• In most cases employees should be paid their normal pay during the notice period.
• Normal notice applies when employment is being terminated due to redundancy.

An employment contract can be terminated at any time by either party, it could be a resignation or dismissal, redundancy or retirement. For a notice to be effective it should be in writing and specify the date of termination.During the notice period employee's are normally paid their normal pay and benefits that are set out in the written statement or contract of employment. In certain circumstances payment in lieu of notice can be given, but this provision must be contained in the contract of employment.There are two types of notice period: statutory and contractual. Statutory notice is the minimum legal notice that can be given, employer's should give the employee:

• one week's notice if the employee has been employed by the employer continuously for one month or more, but for less than two years
• two weeks' notice if the employee has been employed by the employer continuously for two years, and one additional week's notice for each further complete year of continuous employment, up to a maximum of 12 weeks. For example if an employee has worked for 5 years then they are entitled to 5 weeks notice.

Such matters are best resolved by applying goodwill, rapport, exceptional levels of persuasion, persistence, reasoning, negotiation skills, while in employment.

 “Waiver of notice period in lieu of notice period upon resignation shall need to be authorized by respective VBU/ HBU / sales / enabling-unit HR Head.“

Approach all heads and do not limit to these heads only and escalate up to good offices of appointing authority, MD, Company Secretary. At times IR/employee relations are helpful. You should make it happen and submit minutes of each effort with a copy to you, and build a favorable record.

---“my new company requires me to submit my relieving letter from the current company on the date of joining itself, failing which my joining formalities will not be taken forward.“

First of all you may settle some more terms in writing with your prospective/next employer who is more than willing to employ you to the extent that it wants to buy out the notice period,. A small error or negligence can affect you in the long run.

Obtain the offer of employment in writing with date of offer up to 3 month’s from your date of resignation. A bird in hand is better than tow in the bush.

Point out in writing even if by email (mention full name and address):

-that your current employer is not willing to relieve you, if you do not serve the full notice period of 3 months and may not issue the acknowledgment/acceptance of notice of resignation, final resignation, FNF statement, Form 16, work experience/service certificate, relieving letter and therefore you can not supply it until it is supplied to you by your current employer (mention full name and address). You may even mention that your current employer may even declare you absconding and resort to passing (unfair) order of termination, and post adverse comments in your personnel file and may even write to next employer (mention full name and address) and any one else too.

-that you can supply only a photocopy of resignation notice, final resignation posted by you and its proof of dispatch by redg. post ( You should obtain POD too from PO one which is given free of cost  and another against payment of Rs.10/ i.e. run sheet of post man), and company should agree to employ you on the strength of these docs only.

Pls note that next employer may ask you to sign an affidavit/indemnity that you are not employed elsewhere and may even insert some clause in appointment letter, that if you do not submit relieving letter within say 6 months or if reference check is adverse your services can be terminated. In that case you would be in trouble and under stress.

Take care to obtain the appointment letter on day 1 so that if such unfair clauses are imposed you can go back to your past employer at least.

Are you registered with NASSCHOM? Your company may post adverse comments in your profile with NASSCHOM…..Avoid registering with NASSCHOM and do not put your profile there. Some employers are making it mandatory to register. The hidden agenda is to keep on exploiting employees in IT sector which is already being exploited.

You may do your homework and defend your interest ferociously at all fronts and do not fall in legal traps.

You have posted that:

__”Post my discussion with my First level manager I've initiated sepration process in our internal Exit management system also sent an e-mail to my boss as well.“

The appointment letter is signed by appointing authority. So you may submit notice of resignation addressed to appointing authority, MD, by forwarding this official email addressed to Boss, and attach the screenshot/printout of internal Exit management system and take a printout of both email and internal Exit management system. Thereafter you may submit notice of resignation addressed to appointing authority, MD preferably by letter thru redg. post, attaching the email addressed to Boss and internal Exit management system and narrate the minutes of discussion with Boss.

After or during separation at any time company can block access to official email id and then you may never get it.

During employment you may download/obtain all records that pertain to your employment, performance, completion of all tasks.

Application of appointment and resignation etc are personal matter and should be preferably initiated from personal email id or by letter under signatures.

--Notice period described in appointment letter is part of service conditions.

Service conditions are governed by certified standing orders/model standing orders under IESO Act of the company, appointment letter.

In some states as per IT policy of the state, IT companies were granted blanket exemptions from the provisions of IESO Act, while some states did not grant such exemption. Standing orders should be displayed on notice board near entrance, and a copy should be provided to employee against nominal charges say Rs.10/

You may check the status as in your state. The contact details of officials of Dept. of Labor/SE Inspectorate, IESO Act/ Model Standing Orders under the Act may be available at Dept. of Labor website of your state.

Model Standing Orders: 13.        Termination of employment.- .--(1) For terminating employment of a permanent workmen, notice in writing shall be given either by the employer or the workmen - one month’s notice in the case of monthly-rated

(2)                 No temporary workman whether monthly-rated, weekly-rated or piece-rated and no probationer or badli shall be entitled  to any notice or  pay in lieu thereof

14.  Disciplinary action for misconduct.-, 15.       Complaints,

16.  Certificate on termination of service.--Every permanent  workman shall be entitled to a service certificate at the time of his dismissal, discharge or retirement from service.

NOTE. - There is a provision under  this  Act for issuing a service certificate at the time of  dismissal, discharge or retirement and every person is entitled to take such certificate.

17.  Liability of 17[employer].--, 18.          Exhibition of standing orders

-- “Waiver of notice period in lieu of notice period upon resignation shall need to be authorized by respective VBU/ HBU / sales / enabling-unit HR Head.“

This is internal mater of the company still you may complete all tasks and obtain clearance on it at least from your boss even if by email.

You may also affirm in your notice of resignation or by subsequent communications that you are willing to train the employee designated as your replacement within and up to your last day in office only, and tasks may be assigned to you which can be completed within and up to your last day in office only. You may also mention that good offices should inform you immediately to whom you should handover the charge and company property if any and designated employee may be advised to supply you the acknowledgment on the spot.

If the task of the Employee who has notified the company for separation are not properly handed over, and employer has prepared to claim some financial or any other loss and the employee is not interested to indemnify the employer then employer may ask employee who has resigned to serve full notice period

As per contract of employment, if employer/employee does not serve full notice period, either of them has to compensate the other party by tendering notice pay @ basic as mentioned in appointment letter too.

This is in line with Indian Contract Act 1872 Sec73, 74.

The Specific Relief Act says that a Contract of Personal Service cannot be enforced in a Court of Law which means that if a employee quits before the Notice period the Employer can only recover the Notice pay. It is general law that whenever there is any ambiguity in terms of contract then benefit of doubt will given to party who don’t make the contract.

In addition to the Industrial Disputes Act, 1947, several states also provide for compliances under the Shops & Establishment Acts, Standard Standing Orders Act, …. So, if the employee falls within the definition which has been provided under the said enactments, then he would be protected.

Notice period is mentioned in SE Act as well. IT companies are covered by SE Act of the state. We have not come across any SE Act stating that notice period should be 3 months. It is maximum 1 month.

Thus clause in your appointment letter on notice period may be claimed as void to that extent as per SE Act applicable to your state.

It is clearly mentioned in SE Act of Delhi that clause on notice period applicable to employee is in benefit to employer, and one of the duties of the Inspector under SE act is to ensure that discharged employee gets everything as defined in the enactment, and that in the absence of standing orders separation shall be as per clause of Notice of Dismissal in the Act.

One month is sufficient and reasonable notice for the employer to put his house in order. The company can recruit a new person within one month and ask the resigned person to handover things. If replacement is not found, the resigned person's records/work can be handed over to his colleagues/superiors/managers and when new person is recruited the same may be shifted to him. Till then managers/leaders should handle the work.

---“ However i have 25 days annual leaves which can be adjusted but my first level manager not agree to do that as well.“

It is discretion of the company to adjust annual/paid leave in notice period or not.

However company shall have to encash paid leave in FNF statement/settlement and it may adjust notice pay in FNF statement.

---“ Also my prospective employer ready to buy out notice and they have urgent requirement for this particular position.“

If your current employer does not adjust notice pay in FNF statement and reduce amounts of FNF Payment and thus does not issue Form 16 as per FNF amounts arrived at after adjustment of notice pay, and your next employer buys out shortfall in notice period, you shall be subjected to double taxation.

So if you are planning to enclose the cheque with notice of resignation, final resignation you should mention that the acknowledgment of cheque is to be issued on the spot to you and notice pay collected from you should be reflected and adjusted in FNF statement.

The dilemma you are facing is being faced by majority of the employees.

So employees should learn on how to manage the situation.

Keep on submitting reminders to employer on your notice of resignation, last day in office, and submit final resignation and defeat the contentions of the employer that you have absconded/abandoned.

You may take this calculated risk only if you have successfully firmed up your terms with next employer in writing with a copy to you.

If you are not bale to handle the matter on your own and the situation becomes clumsy and if thee are legal traps and issues please be assured that there would be a lawyer to counsel and defend you.

It shall be appropriate to meet a competent and experienced labor consultant/service lawyer in person with copies of all documents and give inputs in person, spend quality time with your lawyer and proceed under expert advice of your lawyer.

BE SMART.

If a company is not paying the settlement amount how can I get the same. after resign.

@ Minhajul,

Kindly always initiate a new thread and post detailed facts.

This shall help every one.