sjm.nsk
in Labour Law
Asked April 18, 2015

notice of resignation vs. termination letter

  • 2 Answers
  • 855 Views

I was working on the post of Assistant Manager in Quality Assurance dept. in a limited company. Myself & a colleague of mine were promoted from the post of Sr. Exec. to Asst Mgrs, while my salary (CTC) was increased by 22%, my colleague got 100% rise. So i orally complained to our HOD about this. After some days, I was called in HR dept. & they told me that i was receiving money from contractors, so i should resign. In a heat of moment i resigned without mentioning any resignation notice period, nor did i wrote about `immediate relieving`. I only wrote i am resigning due to personal reasons, so relieve me from my duty but i did not mention any date on it. The management immediately accepted it. the remarks are`Accepted, & can be relieved with immediate effect`, also i was not informed or any sort of communication was sent to me about this remark & my full & final settlement is not given. While as per terms & conditions of appointment, `After confirmation the employee can resign by giving one months notice or payment in lieu of, & the company can terminate your service by giving one months notice or payment in lieu of`. So if i had not requested for immediate relieving nor did i deposited one months salary for waiver of notice period, hence technically the resign letter should be termed as `notice of resignation` as per appointment contract, which could have become effective only after the period of one month. But by unilaterally waiving the notice period, the company has breached the employment contract which should amount to unfair dismissal. Also after a week of my resignation, i withdrew my resignation which was well within the one month time. So i want your legal advice on these above matters.

Answers 2

Default avatar
Ayushi Singhal
Similar instances of immediate acceptance of resignation letter and the subsequent withdrawal of the same before the expiry of the notice period have come up before the courts in India. The decision in these cases have hinged upon the wording of the appropriate contract in each case. Back in 1978, in the case of Union of India v. Gopal Chandra Misra [1], the Supreme Court held, “in the absence of a legal, contractual or constitutional bar, a prospective resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office-tenure of the resignor.” Applying this decision, in certain cases, where there was a provision giving the employer the power to waive off the notice period of the employee, with the contract saying, “No officer shall resign from the service of the bank otherwise than on the expiry of three months from the service on the bank of a notice in writing of such resignation. Provided further that the competent authority may reduce the period of three months, or remit the requirement of notice.” The court interpreted it to mean that the employer could terminate the employment with immediate effect on furnishing of the notice only when the employee specifically asks for it. In other cases, the employee has a right to withdraw the resignation before the notice period expires and the employer does not have the right to unilaterally waive the notice period [2]. However in another case (of 1998) [3] where the appointing authority had the power to accept the resignation with immediate effect, or at any time before the expiry of the period of notice in lieu of payment, the Madhya Pradesh High Court held that it was perfectly legal for the employer to accept the resignation with immediate effect, distinguishing this case from the above one, wherein no compensation was provided for the termination of employment before the date when the employee wanted to resign. In the latter case the employee could not withdraw after the acceptance of the resignation even when the period of notice had not expired yet; while in the former, the employee could withdraw the resignation and the employer could not unilaterally waive the notice period. Your case is more similar to the former case and it is likely that the withdrawal of your resignation is valid and your employer cannot terminate your services before the completion of the one month notice period. [1] AIR 1978 SC 694. [2] Punjab National Bank v P.K. Mittal, AIR 1989 SC 1083. [3] M.P. State Agro Industrial Development Corporation v. Rakesh Kumar Gupta, 1998(1)JLJ87; See also, India Yamaha Motors (Pvt.) Ltd. v. Labour Court – II, 2012 LLR 1276.
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Default avatar
Srija Choudhury
There is no statutory provision for employment of managerial staff in private limited companies so everyone is governed by their individual contract of employment respectively. Terms of employment of an employee, either on permanent basis or contract basis will be governed by the contract of employment between the company and the employee. Termination of a managerial employee will also be governed under the employment contract. Any termination beyond such contract will be illegal. The general procedure of resignation is, when an employee gives a letter of resignation the same has to be approved by the head of the department. After approval from HOD, the employee gets a one month notice (in case of probation) or three month notice within which he can withdraw his letter of resignation. The duration of notice varies from company to company. The employer can accept resignation with immediate effect any time before expiry of the notice period in lieu of payment of compensation [Punjab National Bank v. P.K Mittal (1989 AIR 1083)]. In the case of Balram Gupta v. Union of India (1987 SSC 228) it was held based on the principle of general law, in absence on any legal, contractual or constitutional bar an employee can withdraw his proposal to resign anytime before the termination of the employment period, i.e notice period. In your case, withdrawal of the notice of resignation is valid as it is done within the notice span. You can file a civil suit in the district court for wrongful termination and claim damages for your loss of earning and other benefits of your employment. You can also file a writ petition under Article 226 of the Constitution and challenge the wrongful termination in High Court. In the case of Ramesh Kumar Rawat v. Management of M/s Northern Scales Company[W.P(c) 7385 of 2007], Delhi High Court set aside the award of labour court and granted re-instatement in services and 50% of the salary for the time the petitioner did not work with the respondent.
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