Expert: John Varghese - 11/24/2010

Question
QUESTION: Dear John,
Greetings of the day!

I am working in a limited company in India for last 3 years. I have given resignation on 14th Sept 2010 and it was "recd. and signed dated 15th Sept 2010" by my reporting head. I have not mentioned any relieving date required by me, in my resignation letter. In my present company my notice period is of 3 months.  But i want my relieving earlier than 3 months.

After giving my resignation i send an e-mail to my present company asking for relieving  by 13th of Nov 2010 which is as follows: -

"
Subject: Relieving from Services on resignation w.e.f 13 Nov. 2010

Dear Sir,

In continuation of my resignation dated 14 Oct. 2010, i must be relieved on 13th Nov 2010 as i have to proceed on training in the new company with effect from 15th Nov 2010.
Please adjust my remaining notice period from my due leaves or/and full and final as per company norms.
If the office needs any formality to be completed by me, i may be informed.
"

To the above e-mail they replied; which is as under: -

"
As per the terms of your employment with the Company, you are required to serve three months notice which period will expire on 11th January, 2011.  As such,  you will be relieved latest by 11th January, 2011.

Regards,
"


My agreement with the company reads as under: -
"
Notwithstanding anything to the contrary herein, either party may, during the tenure of your service terminate the same by giving to the other party not less than three months' previous notice of termination in writing.

Further, the Company shall, in addition, have the right to terminate your services at its sole discretion at any time without being required to state its reasons for doing so on payment to you of three months' salary in lieu of notice and proportionate commission when due and payable.
"

Now i am able to get extension from my new company where i have to join on and before 29th Nov. 2010.

I have clearly told my seniors about my joining date and its urgency. But they are saying that u have to serve 3 months notice period as we are not able to get a replacement for you. Further they are verbally saying that if you join new company we will terminate you officially, wont give you relieving letter & experience letter and will not give any pending dues etc.

My due leave in the company is 64 days.
Please guide if i can join new company within my 3 months notice period without any legal obligations.if i join new company before 3 months will my present company hold my dues, relieving certificate and experience certificates etc.

All my colleagues have been relieved within 1 month till date so there is no similar case like mine in this company.

Please help and advise


Thanks a lot

Gaurav

ANSWER: Dear Gaurav,

In your case, as far as the legal position goes, you are bound by the terms of the agreement you had entered into while joining service and hence 3 months notice period must be compulsorily served. The waiver of notice period is completely management's discretion and you cannot claim it as  a matter of right.

It is not clear whether there is any provision in your appointment letter or terms of employment that no leave can be availed while serving notice period. Normally such a clause would be there in most employment agreements, but if it is not there then you can take a chance and apply for leave till the last day of service. It is also not clear what are the other amounts that are due to you from the company apart from the amount that would be credited on forefeiture of leave.
If such a clause is there, you can take another chance, by issuing a letter to the company stating that you may be immediately relieved with effect from 29th November and the company may credit the remaining leave to your account, and also mention clearly that you will be joining the other company with effect from 29th Nov in the absence of any further communication from the company. Send this letter by registered post acknowledgement due(it will take at least 4 working days for this letter to reach your employer and by the time you can join the new company.) Since in any case you have already taken a decision to join the new company, you would not be expecting leave forefeited amount. If the company takes any disciplinary action against you, post your joining the new company as above, issue a lawyers notice to the company stating that you had already informed the company regarding your intention of leaving the company, and it was in the absence of any communication from them that you had joined the new company and further that the proposed disciplinary action is nothing but a facade to avoid paying you the amounts due to you upon resignation, and that if the company proceeds with further action, you would be approaching labour officer for redressal of the grievance. Ensure that in the letter, a cc is shown to be issued to Labour officer. Such a letter is to be issued through a lawyer, immediately on receipt of the notice regarding disciplinary action. If no notice is received prior to termination, please challenge that before labour officer on similar grounds. Once labour officer is involved, let us hope that the company will not take further action(Let us also hope that the company authorities does not read this advice!)

Regards

John Varghese

---------- FOLLOW-UP ----------

QUESTION: Dear John,

Thanks for the reply and guidance.


I can apply for the leave as there is no clause in my agreement regarding taking leave in notice period. I took 4 days casual leave during this notice period and the same was sanctioned/accepted immediately.


As per your reply; i already asked my boss for 1.5 months leave, he said they wont sanction/accept it in any case.
Further even if i take a leave i cannot formally join my new company as at one point of time i cannot be on the rolls of two companies.

I have requested them again and again to adjust my due leaves against my remaining notice period. But they are not refusing to that.
My pending dues are Privilege leaves (64 no's), LTA & medical claims, Travel reimbursements etc which are equal to my 2-3 months salary approx.

I have to join my new company on 29 Nov. 2010. I was thinking if i can send them a letter stating that they should not pay me from 28th Nov. onwards as i wont be doing any work. (I work as a resident engineer at a location and we dont have company office at my location). Please advise on the same and legal formalities required NOW, to have a strong base in case of any problem at later stage.

(Please also note i have resigned on 14th Oct and not on 14th Sept which i have mentioned in first paragraph of my initial question.)


waiting for the reply........

ANSWER: Dear Gaurav,

Keep things simple and thats what you want right now. You need to first decide which should have priority- new job or 2-3 months salary.Apprise your new employer about what is happening and if they do not have any problem in your being terminated,go for the new job. So far as your new employer is concerned that is where you are going to spend the rest of your time-so be transparent to them and discuss the attitude of the old management-they themselves will suggest a solution.

So if you want to join the new company, why are you thinking of asking your current company not to pay you from Nov 29, and why cant you instead demand to be relieved from work by adjusting your existing leave, as mentioned in your earlier letter. As already advised please send such a letter by registered post acknowledgement due. If on the contrary you are sending a letter stating that they should not pay you, you would be putting the ball in their court- that letter would be a clear indication of your violation of employment rules and so i would not advice you to make any such folly. I think the only course left to you is as adviced in my earlier correspondence with you. But please bear in mind that such a course will not insulate you entirely from the legal proceedings.I repeat-legally you are bound to serve the full term of 3 months and there is no completely legal way for getting out of this clause.  It would maximum only scare your employer from taking action against you since it would give an impression that that would take them to a protracted legal action.
Regards

John Varghese

---------- FOLLOW-UP ----------

QUESTION: Dear John,

Thanx for prompt and precise reply,


For me salary is not important than my opportunity with the new company. My new company is ready to join me and i am fully transparent to them.
The only reason i want to inform/notify them not to credit any salary in my account from 29 Nov is because legally one cannot draw salary from 2 places at one time. My senior told me that if i join new company they wont stop my salary deliberately to make things complex for me later. I have asked them many times and notified them in writing to adjust my due leave but they have completely refused to do so.
I will join the new company and understand it will be breach of the agreement with my present company and i am ready to face the action if any but i want my side strong and as safe as possible.
Please advise the wording to be used in the registered letter? (i already have receiving of resign and reply to the mail in which i have asked to adjust my due leaves).

I think that they will reply something to all my registered letters as per the agreement rules or company policies. Please suggest a letter that can be last from my side so that i dont have to wait for their reply and can join the new company after giving that letter.


Once again thanx and waiting for the reply
Gaurav

Answer
Dear Gaurav,

There is no law in India that prohibits receiving salary from two employers. For example,if you are doing two part-time jobs, you can very well receive salary from two or even more number of employers. I presume the salary is being credited directly to your account. So don't worry about such things. In any case you have not asked for the amount, and the only thing you have to do is not to return the amount of salary additionally credited to you even if they ask you to refund it back. Take a claim that they ought to have noticed your letter resigning from the company and getting relieved with effect from 29th November 2010.

The wording of the registered letter, which is to be last from your side, should be approximately as follows:
" Please refer to my resignation letter dated..... and your letter dated........... informing acceptance of resignation. As you are aware I have 64 leaves standing to my credit. I may inform you that I have to join my new employer not later than 29th Nov 2010 and hence I request you to adjust the outstanding leave against balance notice period and relieve me with effect from 29th November 2010. Please note that I am eligible for leave and there is no company policy to my knowledge which can deny me the eligible leave. In the circumstances, I request you to consider 28th November 2010 as my last working day and do the needful. I am proceeding to join the new company on the understanding that you will not deny my lawful right to leave."

Regards

John Varghese