Resignation Of An Employee Without Notice Period - DOCX Download

My company is registered under the Karnataka State S&E Act as a Proprietorship Concern.

An employee, who was an Academic Counselor by designation, resigned by sending a resignation letter through email. I asked the employee to serve the notice period or pay two months' salary (Rs.15,000/- per month as per the employment letter, which was discussed orally). Since the employee mentioned she was getting married, I did not insist on the Notice Pay. Out of humanitarian considerations, I signed the resignation letter as "relieved with immediate effect" on a hard copy and handed it over to her.

A few days later, I discovered that she had lied. I responded to her resignation email addressing the issue and eventually wished her well as part of the relieving process. She also replied with her perspective and expressed gratitude for the opportunities provided. This concluded the matter.

After 10 days, she returned and stated she would complete the full 60-day Notice Period. Once again, considering humanitarian aspects, I agreed. However, she worked for approximately 40 days and then disappeared once more without completing the full period.

Five months later, she went to the police station and filed a case alleging that I did not provide her with the relieving letter and was harassing her. Subsequently, I presented both emails as evidence, and upon police advice, stamped and signed them before handing them over to her via the authorities.

Now, she claims that since she did not receive a proper letter on the Company Letterhead detailing all relevant information such as the date of joining and resignation, she intends to file a case against me for harassment.

I seek guidance on handling this situation effectively. Any advice or tips on managing this case would be greatly appreciated.

In such instances, it is not the police who should interfere, but the Labour Department authorities are the appropriate persons to intervene and sort out the issue. It is due to the employee's (ex-employee) sheer lack of common sense that she lodged a police complaint on such a matter. Anyway, if she is so adamant that she requires a letter on the company letterhead, you may give it, but it should be a service cum relieving certificate showcasing the entire story similar to the one stated below:

"This is to certify that Ms......had worked in this establishment from (date of joining) to (date of leaving) as (designation). She was relieved from service on ...(first date of relieving) following her resignation dated ...(date of resignation) and on her request to waive the notice period. But later on (date on which she agreed to serve a 2-month notice period), she was allowed to continue in service on her request and interest to serve the notice period. However, she abandoned the job with effect from (date from which she remained absent, i.e., after 40 days of rejoining). On ..(date on which she was finally relieved), she was formally relieved when she made a complaint before the Inspector of Police of the local Police Station, even though a misconduct sufficient to initiate disciplinary action was pending against her."

The above certificate should be final and let it be on company letterhead. Employees have lots of rights under various labor acts, especially the Industrial Disputes Act, but no employee has any right to ask the employer to provide a fine/good certificate about his service. Moreover, in reference to an inquiry, you can certainly mention the points above.

Regards,

Madhu.T.K

Hi,

What Mr. Madhu meant by "in your reference enquiry you may certainly put your above points" is that when people take up a new job, they often contact their previous organization for reference checks. This involves seeking feedback from former employers regarding the employee's performance and behavior. At that time, you can present the relevant facts.

Regards, Anita

Hi hbvkrishna,

Do you agree with Madhu's view? You should prepare a case history and also keep the emails for your reference in the employee file. Additionally, issue her a letter on company letterhead stating the reasons for relieving, including the actual dates, her date of resignation, and the notice period served.

Dear Mr. Krishna,

The document uploaded by you is pretty clear and will stand by you in any court of law. As far as the relieving letter on letterhead is concerned, you may give it if you desire, or withhold it until she pays for the notice period not served. It's pretty legal. You can let her file a case and ask your lawyer to file for claiming the notice period pay for the period not served. After she pays for the notice period not served, you can issue the relieving letter on your letterhead.

Manoj

I have a different opinion about issuing a relieving letter. You may issue it as detailed by me in my earlier post and do not insist on her to pay the notice pay. Because in court (if it goes out of our control), that may prove against the organization. An employer is not expected to demand notice pay as there is nothing in any labor law permitting an employer to demand notice pay or requiring an employee/workman to give notice pay if they want to leave the organization. Although an employer is bound to give notice or notice pay if they want to terminate or retrench an employee. It is well-settled law that nothing in the appointment order, which is against prevailing laws, will be maintainable. Therefore, I think we should not complicate the issue by stopping the relieving order and asking her to pay the notice pay. Just ask her to come and collect the letter. Please remember that the relieving letter is issued by the employer, and the employer can narrate everything about the employee's performance. It is not necessary for it to be spotless and free from all history of any nuisances the employee might have caused during their service.

Madhu.T.K

I have been debating on this topic, and I do find that Mr. Madhu's advice is more strategic as well as within the framework of compliance.

However, one of my friends informed me that there is a Supreme Court judgment stating that the relieving letter and service certificate should be without negative remarks in the case of resignation, retirement, or termination. Is this true? Can anyone shed some light on this, please..

Dear Seniors,

Can a service letter where the employer mentioned the date of joining and the date of resignation be treated as a relieving letter?

Please revert.

In simple terms, the relieving letter formally states that your resignation has been accepted, and you have been relieved from services. However, the experience letter is a document that specifies your Date of Joining (DoJ) and Date of Resignation (DoR), as well as details about the type of experience you gained, whether the company was satisfied with your performance, etc. This letter is issued upon the completion of your employment contractual obligations.

I have not come across any Supreme Court verdict that states there should not be any negative comments about an employee in their service certificate. I would appreciate it if anybody could share the same so that we can review the judgment in detail and come to a conclusion.

Anyway, I don't think that an employer's right to give negative remarks about a poor employee will be challenged. If an employer is not supposed to give any negative remarks, then why isn't there a common format for service certificates? What is the significance of a service certificate?

Madhu.T.K

[QUOTE=Madhu.T.K;2034649 "That may prove against the organization since an employer is not expected to demand notice pay as there is nothing in any labor law which permits an employer to demand notice pay or makes an employee/workman give notice pay if he wants to leave the organization. Though an employer is bound to give notice or notice pay if he wants to terminate or retrench an employee. It is a well-settled law that nothing in the appointment order which is against the prevailing laws will be maintainable."

In this case, the employee will be termed as a non-workman and governed by the contract between the company and the employee.

No, non-workmen will not be governed by the contract of employment, whereas workmen are governed by either certified Standing Orders and/or the Industrial Disputes Act. The Industrial Disputes Act does not specify anything about an employee's obligation to serve notice or pay notice pay. Additionally, a contract of employment that includes negative covenants or provisions contrary to the law is considered void.

Madhu.T.K

Hi,

An experience letter will contain the Date of Joining (DOJ), Date of Leaving (DOL), designation of the employee, etc. Upon resignation, you cannot brand the employee as bad. The fact remains that you hired the employee for a certain period because the employee is good or required for you. You cannot write any wrong information without holding a proper domestic inquiry and proving guilt. An employee or any person has the right to prove that they are innocent of charges.

By writing something wrong about an employee, please note that we are unnecessarily spoiling the employee's career and creating unemployment. A good employer will not spoil somebody's life.

Mr. Madhu, let's consider our case itself. The employee is a part of a proprietorship concern (Karnataka State S&E Act) and is drawing a salary above 14K per month with incentives.

In that case:

1. Does such an employee fall under the ID Act?
2. Can the employee be considered a workman under the ID Act, even if the designation and job description are Sales/Marketing Officer/Executive in a private enterprise?

Mr. Krishna,

Facts are clear, undisputed, and simple. It appears that you provided an email stamped in the presence of the police, but the employee is requesting such a letter on the company letterhead. The employee's demand seems genuine, as prospective employers often require such letters on official letterheads. Hopefully, the company won't lose anything by providing this letter. Denying it may demotivate other employees working under you. Please meet these simple requirements to resolve the issue promptly instead of worrying or further complicating it.

Mr. Krishna,

Employees should go to a third party (the police or Labor Department) if the issue is not settled. It appears that there is a problem in handling this employee. It is better to resolve the issue internally rather than allowing a third party to intervene.

Mr. Chandrashekar, my question was different.

"No, non-workmen will be governed by the contract of employment whereas workmen are governed by either certified Standing Orders and/or Industrial Disputes Act. The ID Act does not say anything about the employee's obligation to serve notice or pay notice pay, and a contract of employment which has negative covenants or something that is against the law is void."

The employee is a part of a proprietorship concern (Karnataka State S&E Act) and is drawing a salary above 14K pm with incentives.

In that case,

1. Does such an employee fall under the ID Act?
2. Can the employee be considered a workman under the ID Act, even if the designation and job description are of Sales/Marketing Officer/Executive in a private enterprise?

It is not the salary or the designation that the employee carries which decides whether an employee falls under a supervisory category or not, but it is the functional responsibilities. As such, an employee who may be a manager by designation but has no functional authority to approve leave of his subordinates, appraise the performance of his subordinates, or initiate disciplinary action against his subordinates shall be a workman.

I think we are deviating much from the main topic, and there is no relevance to notice pay. Whether we should demand the notice pay from the employee or not is not the main discussion. Instead, the focus should be on whether we should give a relieving letter and service certificate to the employee who has caused significant damage to the company and its officials. If you go through my posting, you must understand that I am a strong supporter of employees and always write for their protection. However, this behavior from an employee is unfair and cannot be tolerated at all. I stand by my point that it should be the prerogative of the employer to write facts about the employee in a service certificate, and the employee has no right to demand that they should be given a fair certificate. If so, the meaning of a service certificate itself will have to be scrapped.

Madhu.T.K

Hi,

It is not worth fighting with a lady who had gone to the Police Station to collect her certificate and complaining of harassment. Many times it is better to compromise unless the employer himself wants to fight it out through HR. The demand of the employee is her Service Certificate which is reasonable.

I don't think it is 'reasonable' on the part of an employee who has already received her relieving letter in the presence of a Police officer! Anyway, I have put forth my opinion based on my knowledge and expertise in human relations, which may be minimal compared to the knowledge of others who have responded to the post. Now, it is up to the ultimate decision-maker to take action, with members like Vivian Chandrashekar advising on how to proceed.

Thank you.

Madhu.T.K

Hi,

It is good to take a different view, analyze a problem, and grow participants' knowledge. I was a victim of a false criminal case from which I eventually emerged clean while handling the labor. I advise based on my expertise, not just knowledge. However, knowledge is a tool for solving problems and is essential, much of which is shared by Mr. Madhu.T.K and others on this subject. All is well.

Madhu T.K's attention is drawn to Model Standing Orders (central) Clause 13, which calls for one month's notice or pay in lieu of that in case of resignations. Thus, it is evident that there is a provision for the employer to demand pay in lieu of notice. This clause is the guiding factor for the majority of organizations to incorporate a similar clause in their appointment letters.

M. M. Rao

That applies only to establishments having certified standing orders and in respect of such establishments that have included the order in their standing order. The Model Standing Order given in the Act contains the same, but it is not necessary that the same clauses should be included in the standing orders meant for adoption by the company.

Madhu.T.K

Just advise me - mine is a small proprietor concern under the Karnataka SE Act, with 3 employees. I have issued an appointment letter which states a 2-month notice period or 2 months of salary in lieu of the notice period.

Secondly, I had once again issued 'relieved with immediate effect' written and with the company seal on the resignation email hard copy through the local police as well, apart from the one which I had given at the time of resignation earlier.

Let us say I further go ahead and issue, on the letterhead, a Relieving Cum Service Certificate where I mention all exact dates per record and also mention that "she is once again formally relieved w.e.f xxxx as she indulged in filing a false complaint."

Let me have your views... any complications?