• Resignation, notice period, overtime

I joined a IT company based in Pune as Assistant Manager in 30th September 2013 and resigned on by sending mail from my official mail id on 4th December 2017 (citing personal reasons) by giving a notice of 2 days (my notice is 3 months). The company didnot accept the resignation in writing.

Verbally, the HR and top management communicated the following to me:
- They cannot accept my resignation
- They didnot agree to my proposal of buying the notice period and issue experience and reliving letter

Notice period clause in my employment contract is as below:
"You may quit the company at any time with a notice period of 3 months. Company may also conclude its employment relationship with you at any time without assigning any reasons with due notice or salary in lieu thereof. The Company reserves the right to pay or recover salary in lieu of notice period and to relieve you before the expiry of the notice period".
There is no reference of notice period calculation in the HR policy.

During my tenure from September 2013 to November 2017, on an average, I have worked 70 hours a week (as per HR policy, I need to complete 45 hours in a week). I have printout of my attendance record for my personal record. However, I have never been paid any overtime by the company.

On the date of resignation, I had 50 days of leave. Leave encashment policy of the company states that the encashment would be on monthly basic salary.

Recently, I have received a letter from the company asking for notice period recovery (and have threaten to take legal action if not paid within 15 days) . The recovery of notice period is done to my Total Monthly Salary (employment letter has used the word salary and is silent whether it means basic salary or total salary). In the recovery amount they have adjusted the leave encashment.

Queries are as below:
1. Can they initiate any legal action?
2. As per various Acts like PF, etc. salary means Basic Salary and DA. And I am willing to pay the notice period on Basic Salary and DA. Is it wise to approach them with this idea?
3. Can I send them a letter asking for overtime for the 4 years?
Asked 4 years ago in Labour

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12 Answers

1. The company hardly pursues the employee through litigation on violation of the job contract. So you can rest assured on that account.

2. There is no need to approach them anymore. You have over worked without any excess payment. So let them initiate litigation which is very unlikely.

3. Yes, in the reply letter you can ask for counter claim for the work done during over time.

Once you reply claiming the payment for your overtime work I think they would end this dispute.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

1. Yes they can initiate since you have agreed in writing on given terms.

They can file a suit for recovery of damages but that can be contested.

2. Yes reply to notice with same since the agreement doesnot make clear what salary your basic salary.csn be recovered in lieu of notice period.further benfits were part of employment terms and cannot be recovered. So same can be recovered and adjusted agaisnt your leave.

3. You can raise a dispute and counter claim based on your attendance in same notice and you also write specifically in notice.thst you shall file .complaimt.before.labour commissioner for non payment of overtime .

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

dear client,

Technically you can come out of the company by paying three months notice salary or by request. Now that you have already resigned, they cannot terminate your services. The Option of adjusting your leave is the companies discretion. It will be appropriate if you request the company to relieve you by adjusting the leave or by way of paying the notice period. Legal solutions are there but it will take a long time. Above all there is contract in between you and your company for 3 months relieving period. So it has to honoured by way of compensating three months salary or by way of request.

IT solutions are not come under labour laws in some circumstances. the act did not specifies any working hours in it companies. Generally in industries working hours per day 8 hours including lunch. but in IT companies not come under this rule

it is better to leave your 3 months salary.

if u r not interested in that then send a legal notice to the employer and file a complaint in the labour court.

but it is a time taking procedure.

Yes they take legal action against you...

Hemadri Chandrakanth
Advocate, Vijayawada
98 Answers
10 Consultations

4.0 on 5.0

company can take legal proceedings to recover notice period pay

2) you would not get any over time

3) you cna approach management that you are willing to pay basic salary for shortfall in notice period

Ajay Sethi
Advocate, Mumbai
87895 Answers
6207 Consultations

5.0 on 5.0

1. Can they initiate any legal action? -If they have sent you a notice, and have said to do a task from your side then non-fulfilment of the task your part may help them to initiate a legal action against you.

2. As per various Acts like PF, etc. salary means Basic Salary and DA. And I am willing to pay the notice period on Basic Salary and DA. Is it wise to approach them with this idea? - It varies from company to company. Before approaching with your idea, you can ask for doubt clearance. Or if in your company salary means the total salary only, then you have to go by that. If there is no rule book or the term is not clearly mentioned in the letter, then you can go by the general meaning of the term salary.

3. Can I send them a letter asking for overtime for the 4 years? - did they at any time thr company mentioned or documented that if you work for more than 45 hours a week, they will pay for overtime ? If yes, then you can ask for the overtime payment.

Moumita Mitra
Advocate, Kolkata
366 Answers
1 Consultation

4.0 on 5.0

your work contract is very much inclined towards the employer therefore it shall be strictly interpreted by the court  while adjudicating the legality of this class. It is not mandatory for the employee to follow the notice period in each and every condition. If the circumstances desires to liberal interpretation of notice clause, keeping in mind the condition of employee then it shall be interpreted liberally. The employer cannot recover the salary which was paid to the employee in appropriation of the services rendered by the employee. According to Section 73 of the Indian Contract Act the employer is entitled to recover any money out of the salary paid to the employee if the employer suffered any Apparent loss. The employer cannot presumed that he has suffered loss due to resign of the employee. It is duty of the employer to prove the  loss by direct evidence. If there is no loss due to resign of the employees then employer cannot recover a single penny only on the basis that employee did not obey the notice period. 

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

Dear,

The company has sent a notice for 15 days threatening you to take legal action against you. Now, let them take legal action. Relax. If you have joined new company, congratulate. Go ahead and take interest in new job. In my opinion, they would never take any legal action against you keeping in view the defence you have in rebut. In any case, if they take any legal action against you, contest them forcefully in the court and I hope you would get success. Cheers.

Dalip Singh
Advocate, New Delhi
1039 Answers
36 Consultations

5.0 on 5.0

Hi,

You may initiate legal action. But, you pay them as per your decision. You may also send reply to notice and claim overtime pay.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

Yes they can initiate legal action against you but you need to send them reply notice that they have not paid your dues of extra work did by you as per existing labour laws. If they initiate any steps against you you will also file a case for recovery of dues.

You can mention.that you are ready to pay the salary of three months notice which you did not serve.

Yes you can mention that you will seek.for dues of over time work done by you. At earliest its advisable to reply to.their legal notice.

Since they have adjusted amount the probability of they filing case against you is less. Yet you can file for recovery of your dues for work done by you.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

1. Legal action means to find you guilty of desertion and terminate your services without giving a chance to explain and without settling all dues to you including the notice period for this final rites.

2. You can just inform them that you are willing to pay for the notice period, dont give them the details, let them demand

3. You can very well send them a letter seeking OT allowance, let them say whatever they feel like

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

If they have sent you a notice reply the same through advocate. You can make out your case in that notice. You can seek overtime. They need to relieve you in salary but the definition of salary depends on the terms of your employment

Prashant Nayak
Advocate, Mumbai
27224 Answers
88 Consultations

4.4 on 5.0

This is my advise to you as follows:

1. They will only recover the amount from you i.e. the amount from your salary;

2. At the maximum they can issue disciplinary proceedings against you, charge you under the same and pass order against you;

3. Make sure no adverse order is passed against you.

Otherwise you not much to worry about. Make sure that you communicate with them stating that due to no fault on your own you had to leave the company.

The maximum steps they can take against you will be:

1. They can issue a legal notice to you;

2. They can initiate a suit against you for recovery;

3. They can go to court, summon you and ask you to pay the money;

4. You can vide formal communications ask for salary for overtime.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

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