You have to follow the rules mentioned in your appointment letter. If not  follow your company standing orders related to the employement in the company.

Thanks Ramachary

The appointment letter does not say anything about notice buy out.

It says that company can terminate with 3 months basic pay. So why cant I buy it? How can they make such one-sided statements?

You are in which state?

The HO/redg. office of the company is I which state?

The employer probably deems and sees it as ‘beneficial termination’ to deter other employees…………………………!!!!!!!

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…………………….

Approach your lawyer as ap with copies of all documents, give inputs in person, and let your lawyer draft and structure reply to show cause notices………………………..and reply by legal notice, before the order of termination is issued.

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 are a member…………………………

Appraise your lawyer on all counts and let seek your lawyer’s wise counsel on how handle it.

If your resignation has been accepted, you are no more an employee as the employer-employee relationship has been ended by employer’s acceptance…………………and show cause notice should not be served……………………..

The way out is probably in the standing orders, enactments applicable to the company e.g. Shops and Establishments Act, appointment letter issued to you.

The notice period is max. of 1 month in Shops and Establishments Act and any period higher than that is for the benefit of employer.

The employee can approach Inspector under this Act, and O/o Labor Commissioner if the need be……………………………….The latest version of the Act and  contact details of officials would be available at the Dept. of Labor website ………………of the state.

The state of Karnataka had ended the blanket exemption granted to IT/ITeS companies and all companies were directed to submit their draft standing orders by Dec12 for certification by Mar13.

The service condition stated in standing orders can not be negated in appointment letter. If notice period in Draft/Certified/Model standing orders is 1 month it can not be 3 months in appointment letter.

You have posted that:

----------“ It says that company can terminate with 3 months basic pay.’

This implies that even if employee has not secured any future source of livelihood, another venture, employment, company can by its single minded ruthless approach terminate the employment of employee and the compensation is determined as liquidated damages equivalent to 3 months basic pay.……………………………………… 

The contract of employment should promote equitable discretion.

Are you aware of any incidence when employee tendered notice of 3 months and company accepted it at once or before expiry of notice period?

The clause of discretion for employer suggest that employer can accept before expiry of notice period although it would be illegal, unlawful…………….

----------“ The company has 3 months non-buyable notice period.”

“The appointment letter does not say anything about notice buy out.”

The liquidated damages in case the employment is terminated by employee should also be equivalent to 3 months basic pay………………….

“I have resigned and requested them to release me in 2 weeks”

You have not caused abrupt termination. You have given reasonable time to employer to put his house in order………………

“on account of some personal reasons.”

You have a compelling personal reason still you have tendered notice…………………….

“After 2 weeks, I returned the company's properties and sent an email to the HR stating it would be my last day today” “I also have the system generated Acceptance of Resignation letter.”

The concerned officials of the company had prior information, still they accepted company property and did not make any request and did not cite any reason to increase the notice period………………..and accepted resignation. Even after accepting resignation company did not cancel the acceptance of resignation……………………

“I am not allocated to any project since a few months.”

Since last 3 months you do not have any unfinished tasks……………………….hence there is no loss being caused to company. Rather you are made to sit idle and are not gaining any skill, knowledge, experience, meaningful assignment……………..and are getting rusted.

The company can not claim that it is pressing to serve the notice to complete the unfinished tasks.

Without any tangible and prudent reason it is just display and show of arrogance, high headedness, large ego………………………………and the threat of termination without any valid reason.

“threatening to terminate me in a week's time as I have stopped reporting to office.’

You have properly resigned, your resignation was accepted, you have not absented, abstained, absconded and now the threat to report to office seems to be uncalled for…………………………

However if you feel and if your lawyer agrees you may visit the good offices of the company i.e appointing authority, MD, CEO, Company Secretary and attempt to convince them………………..

Do not remain entangled with HR/Line managers. They are not your employer.

They are just another employee in the company. These guys have to watch employer’s policy framed for them and protect their job.

Obtain record/evidence/witness of entry in office, discussion; on record………………..your lawyer can help on the modalities. Be gentle amiable firm and specific……………………….

Hope you can read between the lines.

In another on issuing legal notice company relented.

https://www.lawyersclubindia.com/forum/Resignation-not-accepted-85601.asp#.UfqR3NKAqWM

You may choose wisely and carefully as suitable to you.

Union for IT employees:

https://www.rediff.com/money/2007/feb/01ites.htm

https://www.itecentre.co.in/

Contact Us

Please contact us on
mail id : contact@itecentre.co.in.
ph : 9620907912

Please Join ITEC group for discussion among IT-BPO employees. To join the group, please send a blank mail to itec_bangalore-subscribe@yahoogroups.com

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Thanks a ton for the detailed explanation.

I am from Mumbai, Maharashtra

The company is US based and is headquartered in Maharashtra State.

---------Bombay Shops and Establishments Act (in short SE Act Bombay) is so employee friendly:

38. Application and amendment of the Payment of Wages Act. (l) Notwithstanding anything contained in the Payment of Wages

Act,  1936, (V  ?f

1936)………. the Inspector appointed under this Act shall be deemed to be the Inspector…herein referred to as "the said Act",…….for the purpose of the enforcement of hei provisions of the said Act within the local limits of his jurisdiction.

( Implies that the Inspector under SE Act shall be the Wages Inspector )

38 A: Application of Act VIII of 1923 to employees of establishment.-The provisions of the Workmen's Compensation Act,  1923  (VIII  of  1923),  and the rules  made from time to time thereunder, shall,  mutatis mutandis,  apply to employees  of  an establishment to  which this Act applies, as if they were workmen within the meaning of the Workmen's Compensation Act, 1923.

( Implies any employee under SE Act shall be eligible as if he is a workman and can invoke WC Act)

38B : Application of Industrial Employment (Standing Orders) Act to establishments.-The  provisions of the Industrial Employment (Standing Orders) Act,  1946,  in its application to the State of Maharashtra [(hereinafter in this section referred to as "the said Act"), and the rules and standing orders (including model standing orders) made thereunder from time to time, shall,  mutatis rnuimdis,  apply to  all establishments wherein fifty or more employees are employed and to which this Act applies, as if they were industrial establishment within the meaning of the said Act.

(Implies if company is under SE Act and if it has not framed its standing orders the model standing orders shall apply to all employees. If standing orders are not certified, Model Standing Orders should apply and are attached. You can also download from Dept. of Labor Maharashtra/Bombay website also. Thus while you can approach Inspector under SE Act you should also be eligible to approach Labor Inspector/ALC.)

{ Model Standing Orders: 3.               Tickets,  11.         Payment of wages,  

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 and two weeks’ notice in the case of other workmen: one month’s or two week’s pay, as the case may be, may be paid in lieu of notice.

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.-)

51.    Employer [and manager  to produce registers, records etc.  for inspection.

( Implies that if you lodge a complaint the Inspector can not check all records, your personnel file but can take these to his office. You may obtain certified copies and even peruse RTI route.)

Moreover the Inspector is under obligation report every two months as given in Sec.66

55.    False entries by employer and manager.

58.    Determination of employer for the purpose of this  Act.

66.Notice of termination of service

----------Duties of Inspector under SE Act Bombay can be seen at Maharashtra Govt. website and also at :

https://www.mcgm.gov.in/irj/go/km/docs/documents/MCGM%20Department%20List/Chief%20Inspector%20Shop%20%26%20Establishment/RTI%20Manuals/ChiefInspectorShopEstablishment_RTI_E03.pdf

---------You may also go thru the questions the employer has to answer under the :

These  rules  may  be  called  the  Maharashtra  Shops  and Establishments (Amendment) Rules, 2011.

Industrial Relations:

56.Does  the  establishment  have  a

collective bargaining agreement?

57.Does  the  establishment  have  a  written

grievance procedure

58.Does  the  enterprise  have  a  works

committee or similar body?

 There are many trade unions in Maharashtra and these are very active and very effective.

The unions have been trying to organize employees of IT/ITeS sector.

The state of West Bengal formed a union:

Join any trade union of your choice and the employees shall be supported for entering into negotiated settlement of service conditions including notice period etc, to have ‘Works Committee’ in which employees are on board, Grievance Redressal Mechanism………………. Etc……………

The awareness shall make the employees well and properly informed.

The employee should justify every penny of salary paid by employer, work and contribute to generate revenues and profits for the employer………………………….and defend his rights too.

In today’s scenario when employers are crafting with single minded, ruthless approach: contracts, agreements, appointment letters to suit their interest alone and create legal traps the employee should be vigilant and alert to avoid legal injury.

If you feel there is a scope apply goodwill, rapport, exeptional levels of negotiation, persuasion, reasoning, persistence skills and resolve the matter in your favor. However do not leave anything to chance and record evidence and build favorbale written record too.

You have been given 7 days time by employer................................You may approach your lawyer as ap and proceed as deemd fit and suitable at your end under expert advise of your lawyer.

Keep this thread updated.

Valuable advice of learned experts is sought.

Update:

I sent them a letter by Registered Post Ack. Due along with a cheque of the remaining notice pay. They received the letter but did not respond.

On the day of its recepit, they sent me an email stating that I am terminated me on grounds of unauthorized abscence. The letter also states that I did not respond to the show cause notices, which I did.

I refused to accept the hardcopy of termination letter, which they sent via courier, as it had false statements that I never infomed about my absence and never responded to notices.

I am totally clueless about what to do next.

Please guide

It is believed that you had tried to resolve the matter amicably.

You have been communicating by email.

The company has sent the order of termination by email (note the time of email), courier and might be sending another copy by redg. post as well.

You may obtain the POD and certified copy of run sheet of postman from the PO (against the payment of Rs.10/) for the redg. post sent by you. You may request the post master to inform the approximate time of delivery of redg. Post by postman.

You may log on to the courier website and download the airway bill, time date of courier and comments of courier entered by it as a reason for returning the courier.

There is no benefit of returning the communications.

If the statements of the company are false then you may charge the company personnel by name that has leveled false allegations to effect the termination order. You may add that the notice period was buyable and company could adjust notice pay in FNF statement/settlement, however you have tendered the notice pay by cheque number…………….(mention detail) duly received by company on dated……………..  

If you had become member of trade unions you may evaluate the option of involving them, too.

It is but obvious that the personnel in the company have become adamant and recalcitrant and they may still chase you by recording adverse comments in your personnel file and BGV…………….

Approach your lawyer as ap and refute the allegations of the company and demand to call back the termination order. You may demand that company should allow you to examine your personnel file and know who has inserted what comments. Thus let it become a file and document on record and hence case file.

It shall be appropriate to proceed under the expert advice of your lawyer.

Ask your lawyer if criminal charges can be added by name against company personnel for falsifying the record, lying on record, adopting vindictive and zealous attitude, and they can be pulled up in person………………..

The legal notice by lawyer, demand notice by trade unions may drill some sense into the heads or you may have to agitate in the appropriate forum.

Valuable advice of learned experts/members is sought.

I think Mr Kumar Doab has given sufficient advise.

I have now got a letter for recovery of notice pay and full and final settlement.

Should I go ahead with it?

They are saying that they will not issue relieving letter but just the experience certificate.

or should I go against them for terminating me on false basis?

I would need relieving letter.

Please guide me.

From your latest post it is guessed that you have not approached your lawyer.

Had you discussed the matter with your lawyer, you would not have posted this query.

Sufficient inputs were given to you so that you can defend your interest.

Your interest shall be best served if you are represented by your lawyer at your location.

In the records of company and as per documents inserted in your personnel file your status of separation will continue to remain as ‘Terminated due to absence/ abscondment/ abstaining despite issuing and supplying proper and sufficient communications/notices/show cause notices’.

Raise your demand (by redg. post) to examine the personnel file maintained by company, Service Card etc………………….and thus let these documents become case documents.

This is detrimental to the interest of employee and can adversely effect the future interests of employee………………at any point e.g; BGV/Reference check/Visa application etc…………..

The order of termination being bad and due to vindictive, adamant, zealous, recalcitrant, high headed attitude and conduct of employer and his HR personnel/Line Managers should be called back. Seek your lawyer’s opinion to charge them by name.

What is the reason posted in FNF statement for separation: “Resignation”…………………..or Not or  No Reason is mentioned.

Have the company and its HR person to whom you had sent the cheque for notice pay, supplied you the acknowledgment of the cheque? This man is the recipient of the cheque.

Seek your lawyer's opinion if his act can be called as offence.

If this man had taken the cheque in account and record of the company then has this been mentioned in FNF statement and FNF amounts been reduced by amount of cheque, and has he banked the cheque?

 If cheque has been received then why he has demanded notice pay by recovery notice?

If he has already adjusted notice pay in FNF amounts and still company owes amounts to you then why he has issued recovery notice and why he has not returned the cheque to you?

You have already returned the company property, charge, disbursed notice pay then why relieving letter shall not be issued. Relieving letter signifies nothing is due towards employee and nothing is due towards you.

Approach your elders, your lawyer, trade unions and everyone that can support you.

Don’t waste your time with these HR persons. They are fooling you.

Regarding acknowledgement of the reciept of letter and cheque by the HR person.

I went to the post office and got the acknowledgement letter with the name of receipent, stamped by post master.

What are you waiting for?

Approach your lawyer, show all documents, give inputs in person, understand the merits, proceed under expert advice………………..…………………….

If you are still remaining entangled with these HR guys record all calls, meetings(audio/Visual) speak dates, extract acknowledgment of receipt of cheque in office…………………………prepare and practice draft of discussion and collect irrefutable evidence.

If this man at any point claims that cheque is not traceable, or has been lost or makes any of such nuisance, demand that he has to sign an indemnity bond to be drafted by your lawyer on stamp of Rs.3000/ and to be duly registered before the competent authority e.g; Div. Commissioner……………..and full cost of it is to be paid by him.

It is clear that the HR, employer will not call back order of termination, on their own.

You will need to act so that it is clear to them that calling back order of termination is the only option left for them.

If you can achieve it without a lawyer do that.

If you can achieve it with the help of elders, trade unions, community leaders, or any one else do that.

Or forget about everything, accept the termination and its consequences on you, as your fate and be at peace.

Thanks Kumar sir.

I have just asked for my FnF status "Resigned" or "Terminated"? Waiting for the response.

Can I actually acheive it without a lawyer?

Can I directly approach Labour Comissioner on this?

If not, I will definitely raise this case to a lawyer. Can you suggest someone in Mumbai?

>>> If your status is communicated verbally on phone:

-Record the call. Speak name, designation, phone number of calling person. Speak (yourself) and make the calling person speak the dates/month/year, and narrate the matter briefly but cover everything.

 -Don’t believe verbal communications and demand letter on letterhead and under signature by hand with seal of company by redg. post only and soft copy by email.

-Submit minutes and demand letter and soft copy.

>>>> If your status is stated as ‘resigned’; demand to withdraw the order of termination by the same official or appointing authority, MD and show cause notices in writing, and issue another FNF statement with status and receipt of cheque stated in it.

>>>> If your status is updated as resigned then relieving letter with good comments (avoid without comments as later any comments can be passed regarding you) thru redg. post only.

>>>> If your status is not confirmed you may deem it as ‘Termination’.

>>>> If you have exceptional levels of persuasion, persistence, negotiation, reasoning, flexibility, adaptive skills, knowledge of law, influence implying inflencial authorities/personalities that mean and matter,  you may succeed without a lawyer.

Do not give a very long rope to this HR and this employer.

Approach your lawyer without giving too much time as more you fail in your efforts more adamant this employer and HR will be.

>>>>> Yes. You can directly approach

-Labor Commissioner on this, if you are covered as “Workman” as in ID Act

and

-Inspector under Bombay Shops and Commercial Establishments if you are covered as “Employee” as in this Act.

>>>> NO. Can’t suggest any lawyer in Mumbai.

You have to find your lawyer yourself.

If you wish to avail the services of LCI lawyer you can conduct search at:

https://www.lawyersclubindia.com/lawyers_search/#.UhzBx9KAqWM

The detail of related lawyers is being flasshed by LCI on the bottom of this web page.

You can chat and access Pro Lawyers.

Your near and dear ones can also guide you to a competent and experienced labor consultant/ service lawyer.

In each city there are few lawyers who specialize in labor/service matters, criminal law and they are well known…………………………

DBA maintains its web site. The office bearers can also guide you.

If you do not want to approach your lawyer you may approach Trade Unions, Community Leaders, Political Leaders and some one may help you.

 Finally: Rest is up to you. You may proceed as deemed fit at your end.