Happy Independence Day to all!
Learned experts/members have given valuable advice.Kindly follow it.
Such matters are best resolved amicably by applying rapport, goodwill, exceptional levels of persuasion, persistence, reasoning, negotiation, flexibility skills…………………………..Employee should nurture such skills. These skills can be acquired.
HR and Line Management is not your employer. They are another employee in the company. They shall follow employer’s policy for them. Any variance from it would invite reprimand and action on them. Employer might have framed such policy after inputs from them and they might be stakeholders in such policy and rules.
In short you may not expect reprieve from them.
Can you identify some official in higher management that can grant you some waiver?
>>>> Take your next employer into confidence preferably in writing. Declare that you have shown the appointment letter of current employer and clause on notice period and have informed in person that current employer shall not accept resignation and issue proper reliving letter if you quit in……………….days i.e. joining time given by next employer. It should therefore either extend joining time up to dated……………………or absorb you on the strength of copy of resignation only and should not terminate you if current employer posts adverse comments in BGV……….
The next employer can absorb the new employee on the strength of copy of resignation, proof of its dispatch, POD…………………….and may ask to submit an affidavit that new employee is not employed elsewhere.
The last salary slip, Copy of resignation may suffice.
If the new employer levies a condition that new employee has to submit acceptance of resignation, service certificate, relieving letter from past employer in …………….days it may result into a situation. The hapless employee would be left to lurch.
>>>> There are publications to suggest that employers in your trade have decided to press for serving notice of min. 3 months and do not compromise on it, and to craft employment contracts on these lines…………………….
If employee has signed acceptance of such contract then employee should be prepared to abide or face the situation successfully if he lands up as a looser and decides to contest.
It has come up as an imp. point in many discussions that majority of the employees shy to form or become member of trade union. In fact majority of them look down upon trade union, as if an association/membership of trade unions shall lower the status of employee in trade and society.
Employee’s community is a huge vote bank. Redg. trade unions can participate in framing standing orders/service conditions. In companies there should be ‘Grievance Redressal Mechanism‘, ‘Work committee’ whose members and Chairman is from employee’s community.
The employer’s in IT sector have been forming their bodies and pressing the state Govts. to provide them exemptions provisions from Standing Orders Act, Exemptions from various labor laws in the name of SEZ’s, STPI, IT parks, Essential Services, strikes etc………………..
The employees are not united. Hence the fall out and exploitation and situations faced by employees.
In such a tech oriented industry where the operation is not possible without skilled labor in the end the employees get left to lurch.
Some unions have been formed.
>>>> You are in which state?
The HO/redg. office of the company is in which state?
The employer probably deems and sees your case as ‘beneficial termination’ to deter other employees…………………………!!!!!!!
If you have decided to contest approach your lawyer as ap with copies of all documents, give inputs in person, and let your lawyer draft and structure your representations and build some favorable record to suit your interest in the long run……………………..
Or you may agree to serve 3 months period (as determined by employer now)……………….
You may expect other issues from this employer e.g; refusal to issue proper relieving letter and adverse comments during BGV…………………………and to NSR profile if you have registered in NSR…………………………!!!!!!!!!!!!
Appraise your lawyer on all counts and let seek your lawyer’s wise counsel on how handle it.
You have posted that:
-------- “They have threatened to mark me absconding.”
“but HR rudely………………………………”
“HRs, they are extremely rude. ………………………..”
Employee should record such transactions (audio/visual). Verbal transactions without any evidence, witness may not stand as proof. These may get wasted as mere allegations……………
NO one including HR can be rude at workplace. NO one can threat at workplace. NO can intimidate at workplace.
The HR has announced its ill intention to harm you by false entries on record: by declaring you absconding?
Looking into the various threads in many forums it seems that they shall put their words into practice……………….and do it.
Are you equipped and willing to handle the situation?
The notice of resignation should be carefully structured and ideally supplied by redg. post and movement be downloaded from:
www.indiapost.gov.in
Later POD should be obtained from PO along with copy of run sheet of postman.
-----------“ I dropped the mail about same to my HR and my project manager a week before around on 14th July. They did not reply to that email until 21st. I went to HR 3 weeks before 19th July to discuss about early relieving but HR rudely rejected even before listening to my side. “
Submit copy of notice of resignation and representations made till date (mention names, dates, brief minutes) to good offices of appointing authority, MD, CEO, Company Secretary………….and seek redressal, resolution……………….
----------“ I delievered my KT sessions.”
Obtain proof of it and narrate it too to good offices. The company should not be in a position claim that it is pressing to serve the notice to complete the unfinished tasks.
“The last mail I dropped to HR stated that they should take all company properties from me[My ID + Access card], to which they did not reply.”
Inform this to good offices and demand to designate competent employee (with a copy to you) with instructions to issue proper acknowledgment to you on the spot.
‘Resignation can be without notice or permission’.
The employer may claim that there are unfinished tasks, handover is pending and may insist that employee should serve the notice period. If the employee does not employer may allege loss and claim compensation………………………
Employee should mention notice period/effective date of resignation/last day in office and that no task is pending as on date and now onwards routine work may be allotted which can be completed within and up to last day in office i.e dated……………….and good offices should ensure that exit formalities if any be completed within and up to last day in office, and employee should be informed to whom company property(if any) and charge should be handed over within and up to last day in office, and designated official be instructed to provide proper acknowledgment on the spot.
Employee should demand that acknowledgment and acceptance of notice/resignation be supplied immediately and correct FNF statement, payment of FNF dues by bank DD only, work experience/service certificate, relieving letter, Form 16 as per correct FNF statement, PF number, PF account slips of entire period of service, attested copies of PF transfer/withdrawal forms (submit forms), NOC/NDC etc be supplied by redg. post only within and up to last day in office.
-----“ Also contract states that, company has right to relieve employee before 3 months”
The resignation can not be accepted before the effective date of resignation/expiry of notice period (thus date of retirement chosen by employee)………………………
Supreme Court of India
Nand Keshwar Prasad vs Indian Farmers Fertilizers .
“11. After giving our careful consideration to the facts and circumstances of the case, it appears to us that the law is well settled by this Court in a number of decisions that unless controlled by condition of service or the statutory provisions, the retirement mentioned in the letter of resignation must take effect from the date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date when the employee concerned did not intend to retire from such earlier date. It has also been held by this Court that it is open to the employee concerned to withdraw letter of resignation before the same becomes effective. “
Until or unless there is another judgment by the Apex Court contrary to this judgment delivered by the apex court, employer can not include such conditions in contract of employment.
Your lawyer may opine that this clause inserted in your appointment letter (and such others in the appointment letter) is void.
“ Also contract states that, company has right to relieve employee before 3 months with basic salary as compensation but early relieving of employee solely depends on management decision.”
The acceptance of wages in lieu of shortfall in notice would be entirely prerogative of the employee to accept or reject.
{The employee should preferably submit to allow serving full notice period and earning full salary.
What is the rate of notice pay, in case employee has to tender notice pay basic/gross/CTC?
The contract of employment should promote equitable discretion or the conditions can be termed arbitrary……………………….void, unconscionable…………..}
------------“Even though management introduced known delay to find a replacement”
It is the duty of employer to designate and install the replacement. HOD is ideally the person who should accept handover of charge.
If you can help, do it to find internal/external replacement.
Try to separate with a good note.
-----------“They have threatened to mark me absconding.”
Submit all representations by redg. post.
Reply to all communications by redg. post. Contest the charge and affirm that you have abstained/absconded/absented…………………………………..
The official email id may be blocked any time. Obtain all relevant record. Download severance, exit, HR policy, conduct and discipline rules, service rules, standing orders etc…………………..
DO NOT HESITATE TO APPROACH YOUR LAWYER.
Weigh the pros and cons and proceed under expert advice of your lawyer.
There are many threads in similar subjects; you may find this relevant e.g;
https://www.lawyersclubindia.com/forum/Resignation-with-short-notice-and-letters-85664.asp#.Ugx3aNKAqWM
https://www.lawyersclubindia.com/forum/details.asp?mod_id=86219&offset=2#.Ugx4i9KAqWM
