>>> Acceptance of Resignation: If you have tendered notice of resignation then company can not accept resignation before expiry of notice period..........................
Employee can withdraw resignation before end of notice period.
Supreme Court of India
Nand Keshwar Prasad vs Indian Farmers Fertilizers............
https://www.indiankanoon.org/doc/1452145/?type=print
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 Supreme Court judgment contrary to above this judgement should hold.
If you had withdrawn resignation and company accepted the resignation then it has caused violation.............
If you had withdrawn resignation and company relieved you then your lawyer may opine that it amounts to Termination.................................................In such a case company may offer notice pay if that is acceptable to you then you have the option...................
>>> Notice Period:
If you have resigned without tendering notice of resignation/servicing notice period and if notice period is applicable in your case then notice pay in lieu of notice period can be recovered from employee if notice period is applicable to employee and notice pat in lieu of notice period is part of service conditions.
Notice Period is stated in Standing Orders applicable to the establishment (Certified/Model) and extended to the designation of employee. Model Standing Orders being statue have statutory force and standing orders once certified become instrument of law and shall prevail upon any private agreement signed by employer with employee e.g. appointment letter, contract of employment..............
If notice period stated in standing orders is NIL it can not be even 1 day in appointment letter.
Employer has to display standing orders at a conspicuous place/Notice board and has to supply certified copy to employee.
You may go thru Model Standing Orders: Sec13, 16, 17, 18
Notice period applicable to Probationer is NIL and to confirmed employee is 1 month.
Your lawyer may opine that standing orders are applicable to you.
Notice period is also stated in Shops and Commercial establishments Act of the state.
You may go thru The Bombay Shops and Establishments Act, 1948:
Sec 38: 3B-B: Application of Industrial Employment (Standing Orders) Act to establishments: If your establishment is commercial and 50 people have been employed standing orders shall apply.
66.Notice of termination of service:
Notice period for service =< 3 months= NIL
for service > 3 months <1year = 14 days
for service =1year = 30 days
Designation alone dos not decide employee is covered as ‘Workman’ as in ID Act and as ’Employee’ as in
Shops and Commercial establishments Act.
Your lawyer may opine that you are covered and standing orders are applicable to you.
If you are not covered then the service conditions as in appointment letter, service cods and regulations of the establishment may be looked into.
There are many threads on similar queries that you may find relevant e.g;
https://www.lawyersclubindia.com/experts/Resignation--446881.asp#.UtrCUNK6aXY
https://www.lawyersclubindia.com/experts/Left-job-without-serving-notice-period-any-legal-action--447186.asp#.Utq6_tK6aXY
https://www.lawyersclubindia.com/experts/Harassment-by-employer-447551.asp#.UtrBBdK6aXY
https://www.lawyersclubindia.com/forum/Need-to-understand-the-notice-period-law-95837.asp#.UtrBXtK6aXY
https://www.lawyersclubindia.com/experts/not-serving-notice-period--447391.asp#.UtrBg9K6aXY
>>> Transfer:
Is it stated in standing orders applicable to the establishment and extended to your designation that you can be transferred to other depts./div. of the company and anywhere in India? Or is the word transfer stated in standing orders?
If NO you can not be transferred.
If standing orders are not applicable to the establishment and/or are not extended to your designation then company’s service codes and regulation (service rules/conditions) should be looked into?
Is it stated appointment letter issued to you that you can be transferred to other depts./div. of the company and anywhere in India?
If yes in appointment letter but if NO in standing orders, you can not be transferred.
If yes in appointment letter but if NO service codes and regulations applicable to you, your lawyer may opine that you can not be transferred.
IN case of disputes the courts do not restrict t examination of appointment letter alone but the standing orders and service codes and regulation (service rules/conditions) are also examined and these can prevail upon appointment letter. Although the facts matter however the decision of the court of law is pleasure of the court of law. If the petitioner is not satisfied he can move to appellate/superior court.
Was this Transfer malafide?
Did you mention that the transfer is not acceptable to you?
>>> The relieving letter issued to you relieves you from Mumbai to join at
Delhi or from employment?
Otherwise the relieving letter implies that you have been relieved from the employment of the company and nothing is due against you.
Usually it is stated in service certificate, relieving letter employee separated by.................. (Resignation) and tenure of service DOJ-DOL, designation.........................
You can demand to supply you by redg. post:
-- Original transfer letter,
--original acceptance of resignation...........................this should allay your apprehension that separation is recorded as resignation or termination........................ You can also request to allow you to examine your personnel file maintained by company.
--original FNF statement {that may show location of the employee (Mumbai or Delhi)}, adjustment/recovery of notice pay for verification and acceptance.
>>> What was the matter written in the resignation submitted by you in the email and in the communications prior to transfer and subsequent to transfer?
Did you tender notice of resignation or resignation with immediate effect by citing some reason of resignation or without mentioning any reason?
Did you request to allow you to serve notice period at Mumbai citing reasons...............................e.g education/exam of children, job of spouse etc? However after transfer you were expected to join at Delhi and serve at Delhi even if notice period.
Did you express inability to reach Delhi in two days time? Did the company extend joining time or did the company decline? Did the company ask you to handover the charge at Mumbai? If yes were you relieved before handover?
What is your entitlement to Travel: By Air, BY train (2nd AC, 3 rdAC, 2nd sleeper and were the confirmed tickets available)? Did you apply for advance or was any advance paid to you or was the advance declined?
Did company relieve you before the expiry of notice period tendered by you? If yes why?
In such a case how come company is claiming payment of 2 months of notice period?
It would be appropriate show all docs to your labor consultant/service lawyer for an opinion and evaluation of merits and remedies and your lawyer may find some faults in approach of the company that may be in your favor. You may proceed further after understanding the merits of your case under the expert advice of your lawyer.
