Relieving An Employee Based On Employer Interest - DOC Download - CiteHR
Madhu.T.K
Industrial Relations And Labour Laws
Saswatabanerjee
Partner - Risk Management
Bmktts
Director
Raj Kumar Hansdah
Shrm, Od, Hrd, Pms
PTKSVEL
Manager (power Plant)
+2 Others

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Our company has a notice period of 3 months mutual.In the offer letter they said \"Your services are terminable with three month\'s notice on either side\".
Recently i resigned and with in 2 days they relieved me and said its company\'s interest to relieve an employee.I was expecting atleast i have 3 months time to search for new job.Is this a right way.Can i go in legal way?
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In my opinion, condition of Notice Period or salary in lieu thereof is to give time to both the parties i.e. employer & employee to make their replacements. These conditions are created by the employer and accepted by the employee(In fact employee has no option but to accept the condition/s). As such employer has full power to waive off any of the condition either on the request of employee or of his own keeping in view the interest of the company. Management watches whether employee will give fruitful work during notice period or not or any project is to be completed. Similar is your case.
Your post "I was expecting atleast i have 3 months time to search for new job." reveals that you resigned first and then going to start new job?
In such scenario, the employer is expected to pay 3 months notice pay and relieve him. Notice pay is binding on both the parties and if the employee resigns he would also say that he may be relieved on such date as it would come after 3 months, as this case. Yes, the employer has the option to relieve him earlier provided the employee requests that he may be relieved immediately and it all depends on the HR policy of the orgnaisation. If we take it and fix it like this- that employer wants to terminate the employee by giving the employee three months time to work and at the same time the employee wants that he should be relieved immediately. In such situation it is open to employer to ask him to work for three months or pay three months notice pay in order to relieve him. Though this option rarely happens, the first incident happens very regularly.

In this context I would also like to add one more thing, that an employee can withdraw his resignation before it becomes effective. That means if the date of relieving is three months from now, that is the effective date of relieving and before that he can take back his resignation. If that happens, the alternative (new person appointed or to be appointed) we have found in place of the person getting relieved will become surplus or we will have to call back the offer given to him. Therefore, if the employer thinks that the resigned employee will not be putting his efforts and time in his office, then relieve him but paying notice pay.

Madhu.T.K
Dear Mr Madhu TK,
With due regard,I wish to say that resignation is a unilateral decision taken by the employee and as soon as resignation is accepted by the employer, it becomes final and employee has no authority to withdraw the same after acceptance. Even after tendering resignation, employee cannot withdraw his resignation without consent of employer. However, employer is expected to sit with employee and should know the situation under which employee has taken such decision, if need, should allow cool-down time to employee, but we cannot bind him for this.
As far as payment for notice period of early relieving, I agree with you that terms of employment bind both the parties. Here employee is asking for 3 months' time and not notice pay.
I would like to know status of my above views in your opinion.
Thanks
V K Gupta
When the employee resigns, he has expressed his intent to separate. The notice period is to ensure that there is continuity and there is a smooth transition. When the resignation is voluntary and the same has been accepted, the employer cannot holding the employee, beyond the upper limit ( of notice period, in this case 90 days). However, the employer has the right to relieve earlier ( with or without the request of employee), and no salary be paid by employer for the unserved period.
The key here is the "intent expressed " and the expresser of intent has to sacrifice.
If the employer had asked the employee to leave, then they pay salary for the shortfall of the notice period.
Practically what Gupta has said is true and I also endorse it. But the court verdicts on various disputes show that employee can withdraw his resignation before it becomes effective. I have attached one case for reference. Please go through it.
Madhu.T.K

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File Type: doc Withdrawal of resignation before it becomes effective.doc (39.0 KB, 1012 views)

Dear Santosh,
In your resignation letter have stated that you will serve the full notice period of 3 months, if you have stated so then you can raise this matter with your current employer. Please note that if you insist on 3 months notice pay from your current employer, I am afraid he may even pay the notice pay but issue you a service certificate stating "Services Terminated". This is because that the clause itself is titled "Termination", though in reality it includes relieving based on resignation.
You do have the choice to fight legally, if you had mentioned in your resignation letter of your intention to serve the full notice period of 3 months, but the matter will drag as companies have a legal counsel and they will appear for them and you will go out of pocket to hire one.
Hence, my suggestion is to look for an alternate job without losing time. Incidentally, tendering a resignation without an offer on hand is not considered a prudent move.
Regards
M.V.Kannan
This matter has been discussed several times earlier.

Notice of resignation applies to both parties.

If an employee needs to be relieved immediately after giving his resignation; he has to pay back the notice period salary; else be forced to work till the notice period is over.

Once he has given the "notice of resignation"(and not resignation per se); the ball iss in the employer's court. They have to let him work till the notice period is over. Else, if they do not want his services, they may do so by paying him the notice pay.

Just because an employee has given a notice; does not entitle the employer to terminate his services forthwith without paying him his notice pay.

If such unilateral decision is allowed that there is no sanctity of the contract or agreement on terms and conditions of service. In such a scenario, nothing stops the employer for having a one-year or five-year notice period; as it becomes very clear that the EMPLOYER HAS TO PAY NOTHING - If an employee puts his resignation, the employer can retain him for one year or five year (as per the terms) and if he does not want then he can terminate the services immediately.

So, in such a case there is no point of saying a notice on "either side"; unless there is an equal burden on both parties.

Hope I have been able to convey the implications of ""Your services are terminable with three month\'s notice on either side".

Warm regards.
I joined an O&M company in Sep’10 and after 2.3 yrs of service, on 26.11.’12, I submitted my resignation and I have clearly mentioned that my last working day will be 26.12.’12. As per company policy, notice period is stated as follows:"On Confirmation of your services with our organization two months notice is required for resigning from the service. Out of these two months, one-month service is compulsorily required and for the second month you can opt for one month salary in lieu of notice period." (Company deducts GROSS SALARY). Company credits salary by 15th of every month and as I had resigned on 26th, my salary for Nov’12 was held-up.

Due to family problem I applied leave - after getting consent from Plant Manager from 18/12/’12 to 22/12/’12. Due to unavoidable reasons, I couldn’t join duty on 24/12/’12(23rd was Sunday). Even though I returned back on 24th evening and informed PM also - as 25/12/’12 was Christmas Holiday - I could resume duty on 26.12.’12 which was my last working day. (i.e., I was absent from 23/12/’12 to 25/12/’12 for 3 days). My salary from 1/11/’12 to 26/12/’13 i.e., (56-3=53 days) is still not yet settled. On 26.12.’12, I had obtained NO DUES CERTIFICATE (as per company procedure) from all department Incharges including HR and Plant Manager after surrendering my SIM card, ID card, used safety shoes etc. I also sent the scanned copy of my Resignation acceptance letter and Clearance Certificate to HR & Accounts Department at Head office thro’ e-mail.

After frequent follow-up with HR team, they are saying that my F&FS is held-up as I have not worked for 1month and asking me to pay another 9 days salary(from 18/12/’12 to 26/12/’12). Now they are not transferring my PF amount also to my new PF account (I have submitted FORM 13 to newly joined organization during Feb’13). Till now my F&FS, Releiving letter, Form 16 for filing returns and PF account Transfer form (Form 13 ) not being cleared. Where and/or to whom should I complain for Form 16 and PF Account Transfer delay?What I am arguing is - they can deduct 30 days salary for Notice Period and extra 3 days salary for which I was absent i.e. I am asking them to pay 23 days (56-30-3=23 days) salary after deducting for Notice Period.

IS IT CORRECT ?
The case you have quoted is for a VRS
Acceptance of VRS is not a normal voluntary resignation though the employers would like to call it so.
The courts also know that VRS is a newer form of retrenchment. Therefore, whatever the courts have said in this case will not necessarily be the case in a normal resignation.


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