-------Resignation can be without permission and notice.
HR is not your employer.
He/she is another employee in the company.
No Employer can force an Employee to complete the Notice period. It is for the employee to complete the Notice period in order to take his full salary……………..
You are in which state?
The HO/redg. Office of the company is in which state?
--------Abscondment is not the solution.
It may complicate the issue.
Company may flaunt some of its internal or ‘Employer’s’ policy and may claim that relieving letter is not given to employee that has absconded and is not properly relieved.
Company may also claim abrupt termination/abscondment has caused it loss (although it is to be proved).
Employee should resign properly by resignation addressed to appointing authority under proper acknowledgment (preferably thru redg. post) and tender reasonable notice.
--------Relieving letter signifies that employee has been properly relieved and there is nothing pending against him: has handed over the charge/company property, has completed the assignments/tasks, exit formalities etc………………….
You may structure and draft the notice of resignation carefully ( to cover all points) and affirm that you are willing to handover the charge, company property e.g. and even computer, ID card, visiting cards etc assigned to you (if any otherwise clarify that none is with you) and company should inform to whom you should handover under proper acknowledgment on the post………..and clarify that no tasks are pending at your end and that in fact you are not assigned to any project since……………………and you are not gaining and learning………….and no project coming in future to you has been discussed/informed/intimated to you and you don’t see any hope…………..
It is imp. so that employer is not able to charge that he has suffered any loss.
You may also highlight your personel reasons for separation.
--------If the employer has not levied any condition of notice pay in lieu of shortfall in notice period then no such notice pay is applicable to you/employee.
However if liquidated damages in the form of notice pay are not explicitly specified in the contract of employment then company may claim an amount which it deems fit although it is to be proved and if the matter lands up in court of law, court shall decide the reasonable amount as per reasonableness and facts of the case in question.
Notice pay is as per the exit clause of appointment letter. It is a compensation given by one party (who broke the contract) to other party because of the breach of contract. Section 73 of Indian contract Act 1872 deals with breach of contract and is declaratory of the common law as to damages. The basic purpose of damages is to put party whose rights have been violated in the same position, so far as money can do so, as if his rights have been observed. When compensation sum is named in a contract as the amount to be paid in case of breach then it is termed liquidated damages e.g; notice pay in the employment contract. When it damages are not given in contract then it is un-liquidated damages and these damages will be defined by court on the bases of reasonableness and facts of the case.
---------“Does the clause on termination by company specify it shall be the choice of the employee to accept notice pay in lieu of notice period?”
If yes the contract is arbitrary and does not promote equitable discretion.
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.
If the task of the " Resigned Employee " are not properly handed over or due to which the Employer is going to have " Financial or any other Loss " in this cases if the "Resigned Employee " not interested to indemnify the employer then Employer may ask " Resigned Employee to Serve Notice Period”
Therefore it is another imp. point to be covered while you structure and draft and your notice of resignation.
You may affirm that the company may adjust the notice pay for shortfall in notice period @ it has set in case it initiates the termination without any notice (usually it is Basic + DA)………………..in FNF statement…………..it is under obligation to supply to you for FNF settlement…….
Or you may attach a cheque for notice pay along with notice of resignation and demand that acknowledgment be issued at once (by redg. post)… and amount of cheque be computed in FNF statement……………..
The 3 months long notice period is definitely beneficial to the employer and harmful to the interest of employee.
How much time this company gives to new joinees for joining……………1 month or 3 months??????????????????????
The purpose of notice period is that employer is able to set his house in order, complete the exit formalities, and for that matter is able to designate the replacement……………..
In this post specifically “We are not writing it as to install the replacement”…………………It is a matter of common sense that charge is handed over to HOD and HOD is expected to know the job of reprotees and employer should delegate the work of outgoing employee amongst colleagues other employees or work by himself and employee can not be kept on waiting for infinite that some day employer shall be able to find the replacement and some day sense shall prevail and senior officials will be will come forward to share the work……………
Any policy in the larger interest and beneficial to both employer and the employee has the sanction of law as otherwise it will be easily termed as arbitrary.
This arbitrary clause of mandatory notice period of 3 months affects your interest in securing another better opportunity wherever and whenever it comes across to you.
Now, the new employer in most cases would like the candidate to join at least in 1 month, if there is more delay they may cancel the offer and for employee it is not convenient to continue in the present job…………………………….
Two weeks should be sufficient and reasonable notice for the employer to designate replacement and shift resigned employee’s records and work to colleagues, new employee, superiors…………….
--------In addition to the Industrial Disputes Act, 1947, several states also provide for compliances under the Shops & Establishment Acts, Standing Orders Act…………. So, if the employee falls within the definition which has been provided under these enactments, then he would be protected up to that extent.
Let us assume that you are not covered by either of these enactments and the forum for you to agitate would be civil court…………………
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 …………………………….( as employer might reserved the option of notice period or pay for it if it terminates the contract……………..…)
You have specifically mentioned that you are on no project for last……………………months………………hence the separation is rather beneficial termination for the employer.
-----------The question is which will prevail, the contract of service or service rules (standing orders) and the applicable enactments?
The IT/ITeS companies are covered by (Name of State) Shops and establishments Act of the state………..Notice of termination/dismissal is stated in this enactment………and it is max. 1 month………………You may claim the clause on Notice inserted in the contract is void to that extent as per applicable enactment………..
Some states like Karnataka has granted blanket exemption to IT companies from provisions of IESO Act and same has been withdrawn and all companies were to submit their draft standing orders by Dec12 for certification by Mar13.
The service conditions stated in standing orders can not be negated to employee in appointment letter. If it is 1 month in standing orders it can not be 3 months in appointment letter…………..
Designation alone does not decide employee is a ‘Workman’ as in ID act and ‘Employee’ as in SE Act.
Your lawyer may ask you a set of structured questions and may opine that you are covered by these enactments.
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 workmen……………………
(3) Where the employment of any workmen is terminated, the wages earned by him and other dues, if any, shall be paid before the expiry of the second working day from the day on which his employment is terminated.
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.
Approach your lawyer and proceed as deemed fit at your end.
------The IT employees have been suffering at the hands of employers as per various threads………………..and have formed many of the union/group/forum/guilds for IT employees……………………………
Be a member and ask as many as possible to be a member.
The employer has to negotiate service conditions with the unions and without notice and acceptance can not insert arbitrary conditions in the contract of employment…………………………………........................
https://www.rediff.com/money/2007/feb/01ites.htm
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