Hi,
I have resigned in Peoplesoft HRMS of my company, on 16-Dec-2014 and serving a notice period of 3 months. My last working day as per system is 16-March-2015. I have already completed 2 months notice and for last one month company has put me on Perfomace improvement plan. Can company terminate me citing performance reasons even though I have already resigned and have served a notice period of 2 months. Can I fight a legal case?
From India, Kochi
I have resigned in Peoplesoft HRMS of my company, on 16-Dec-2014 and serving a notice period of 3 months. My last working day as per system is 16-March-2015. I have already completed 2 months notice and for last one month company has put me on Perfomace improvement plan. Can company terminate me citing performance reasons even though I have already resigned and have served a notice period of 2 months. Can I fight a legal case?
From India, Kochi
Since you are a Sr.Test Lead and working in Kochi, you are governed by the Kerala Shops and Commercial Establishments Act, 1960. However, if you are employed in a position of management, you are exempted from the provisions of the Act as per section 3(1)(a) of the Act.
In the facts you have stated that even though your resignation has been accepted by the employer but it has to be effective from 16.3.2015. As per the settled decisions extracted below, the relationship of master and servant shall continue till you are relieved of your duties i.e. on 16.3.2015. If that be so power of employer to terminate you for misconduct continues till you are relieved.
i) Supreme Court of India
Union Of India & Ors vs Hitender Kumar Soni on 21 July, 2014
The High Court, in a rather lengthy judgment, has considered a large number of judgments of this Court for recapitulating the well established principles of law such as – normally, the tender of resignation becomes effective and the service or office tenure of the concerned employee stands terminated, when it is accepted by the Competent Authority. For this, reference may be made to a judgment of a Constitution Bench in the case of Union of India & Ors. v. Gopal Chandra Misra & Ors. (1978) 2 SCC 301; and that notice of voluntary retirement or resignation can be withdrawn at any time before it becomes effective. ……
The normal rule, however, remains that Government has the power to accept a resignation with immediate effect. In case the Government for some reasons wishes to defer or specify the date from which resignation would become effective, it is entitled to take work from the concerned Government servant till he is relieved in accordance with the facts and requirements of the case. The letter of Government accepting an offer of resignation itself should normally be conclusive for deciding whether the Government has opted for immediate termination of service by accepting the resignation or has deferred such termination to a future date. Only in the latter eventuality the relationship of master and servant shall continue till the concerned Government servant is relieved of his duties.
ii) In Power Finance Corporation Ltd. v. Pramod Kumar Bhatia, (1997) 4 SCC 280, the Apex Court has opined that unless the employee is relieved of the duty after acceptance of the voluntary retirement or resignation, jural relationship of the employee and the employer does not come to an end.
iii) In Srikant S.M. v. Bharath Earth Movers Ltd., (2005) 8 SCC 314, after the purported acceptance of the resignation of the appellant therein, he had been granted casual leave from 5th January, 1993 to 13th January, 1993 and was informed that he would be relieved after office hours on 15th January, 1993. In the fact situation obtaining therein, the Apex Court has held thus –
“26. On the basis of the above decisions, in our opinion, the learned counsel for the appellant is right in contending that though the respondent Company had accepted the resignation of the appellant on 4-1-1993 and was ordered to be relieved on that day, by a subsequent letter, he was granted casual leave from 5-1-1993 to 13-1-1993. Moreover, he was informed that he would be relieved after office hours on 15-1-1993. The vinculum juris, therefore, in our considered opinion, continued and the relationship of employer and employee did not come to an end on 4-1-1993. The relieving order and payment of salary also make it abundantly clear that he was continued in service of the Company upto 15-1-1993.”
iv) IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Pronounced on: July 04, 2011 , WP (C) No. 555/2011 INDIAN TOURISM DEVELOPMENT CORPORATION LTD.. Versus SRI KANT SHARMA
31. The present obtaining factual matrix is to be tested on the touchstone of aforesaid decisions in the field. There can be no scintilla of doubt that the employee concerned can withdraw the letter of resignation before the same becomes effective and till such an event takes place, the employee has the locus poenitentiae to withdraw the proposal for voluntary retirement before the date mentioned. In the case at hand, the employer by communication dated 28th September, 2007 had accepted the resignation with effect from that date. However, he was not relieved and the same was postponed till a substitute is posted. There is no dispute that the employee continued till 30th November, 2007 and on that day, he was relieved. He had accepted the retiral dues on 7th October, 2008. He had also claimed interest over the amount of gratuity paid by filing an application. In the case of Shambhu Murari Sinha (supra), their Lordships have opined in the said case that before the appellant was actually relieved
from his service as he had withdrawn his option for voluntary retirement by sending letters, the jural relationship of employee and employer had not come to an end and, hence, he had the locus poenitentiae to withdraw the letter of resignation. By applying the same logic to the case at hand, the petitioner could have withdrawn his resignation while he was not relieved and his date of relieve was postponed till 30th November, 2007. He chose not to do so. He allowed himself to be relieved. He also accepted the reitral benefits. Thus, the jural relationship became extinct. There was severance of status. The relationship between the employer and the employee came to an end. Prior to that date, the resignation had already been accepted. Had the employee submitted an application for withdrawal of resignation during the postponed period, the matter would have been totally different. That is not the factual scene. Ergo, we are disposed to think that the tribunal is not correct in holding that the acceptance of resignation was not acted upon.
In view of above, unless the employee is relieved of the duty after acceptance of the resignation, jural relationship of the employee and the employer does not come to an end. Meaning thereby if an employee commits a misconduct till the master servant relation subsists, disciplinary action can be taken against the servant. But under section 18(1) of the Act, no employer shall dispense with the services of an employee employed continuously for a period of not less than six months, except for a reasonable cause and without giving such employee at least one month’s notice or wages in lieu of such notice. However that such notice shall not be necessary where the services of such employee are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an inquiry held for the purpose.
Your apprehension is that since in last one month company has put you on Perfomance improvement plan, can your company terminate you citing performance reasons. Bad performance allegations may fall under the purview of inefficiency. That has to be proved according to facts of each case. It varies from case to case.
First of all, since your offer to resign has been accepted by your employer, they are barred now to terminate you simplicitor as per terms of contract or in terms of main part of section 18(1) by allegedly covering under “reasonable cause”. Thus the only recourse available is to terminate you by punishment by resorting to proviso of section 18(1) of the Act whereby services of an employee are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an inquiry held for the purpose. They are supposed to give you warnings regarding inefficiency and hold domestic inquiry in accordance with the principles of natural justice. If it is bad in law, then the termination can be set aside.
It is worth pointing out again that under section 18(1) of the Act, no employer shall dispense without giving such employee at least one month’s notice or wages in lieu of such notice. Thus on parity, the employee cannot be discriminated by requiring an employee to give more than one month’s notice or wages in lieu thereof. Any contract contrary to these statutory provisions is void. Thus you are deemed to have been relieved in the eyes of law after completion of one month’s notice period expiry which you have already served. Let the time sail smoothly otherwise take this line of action firstly to combat in the battlefield.
Thanks
Sushil
From India, New Delhi
221In the facts you have stated that even though your resignation has been accepted by the employer but it has to be effective from 16.3.2015. As per the settled decisions extracted below, the relationship of master and servant shall continue till you are relieved of your duties i.e. on 16.3.2015. If that be so power of employer to terminate you for misconduct continues till you are relieved.
i) Supreme Court of India
Union Of India & Ors vs Hitender Kumar Soni on 21 July, 2014
The High Court, in a rather lengthy judgment, has considered a large number of judgments of this Court for recapitulating the well established principles of law such as – normally, the tender of resignation becomes effective and the service or office tenure of the concerned employee stands terminated, when it is accepted by the Competent Authority. For this, reference may be made to a judgment of a Constitution Bench in the case of Union of India & Ors. v. Gopal Chandra Misra & Ors. (1978) 2 SCC 301; and that notice of voluntary retirement or resignation can be withdrawn at any time before it becomes effective. ……
The normal rule, however, remains that Government has the power to accept a resignation with immediate effect. In case the Government for some reasons wishes to defer or specify the date from which resignation would become effective, it is entitled to take work from the concerned Government servant till he is relieved in accordance with the facts and requirements of the case. The letter of Government accepting an offer of resignation itself should normally be conclusive for deciding whether the Government has opted for immediate termination of service by accepting the resignation or has deferred such termination to a future date. Only in the latter eventuality the relationship of master and servant shall continue till the concerned Government servant is relieved of his duties.
ii) In Power Finance Corporation Ltd. v. Pramod Kumar Bhatia, (1997) 4 SCC 280, the Apex Court has opined that unless the employee is relieved of the duty after acceptance of the voluntary retirement or resignation, jural relationship of the employee and the employer does not come to an end.
iii) In Srikant S.M. v. Bharath Earth Movers Ltd., (2005) 8 SCC 314, after the purported acceptance of the resignation of the appellant therein, he had been granted casual leave from 5th January, 1993 to 13th January, 1993 and was informed that he would be relieved after office hours on 15th January, 1993. In the fact situation obtaining therein, the Apex Court has held thus –
“26. On the basis of the above decisions, in our opinion, the learned counsel for the appellant is right in contending that though the respondent Company had accepted the resignation of the appellant on 4-1-1993 and was ordered to be relieved on that day, by a subsequent letter, he was granted casual leave from 5-1-1993 to 13-1-1993. Moreover, he was informed that he would be relieved after office hours on 15-1-1993. The vinculum juris, therefore, in our considered opinion, continued and the relationship of employer and employee did not come to an end on 4-1-1993. The relieving order and payment of salary also make it abundantly clear that he was continued in service of the Company upto 15-1-1993.”
iv) IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Pronounced on: July 04, 2011 , WP (C) No. 555/2011 INDIAN TOURISM DEVELOPMENT CORPORATION LTD.. Versus SRI KANT SHARMA
31. The present obtaining factual matrix is to be tested on the touchstone of aforesaid decisions in the field. There can be no scintilla of doubt that the employee concerned can withdraw the letter of resignation before the same becomes effective and till such an event takes place, the employee has the locus poenitentiae to withdraw the proposal for voluntary retirement before the date mentioned. In the case at hand, the employer by communication dated 28th September, 2007 had accepted the resignation with effect from that date. However, he was not relieved and the same was postponed till a substitute is posted. There is no dispute that the employee continued till 30th November, 2007 and on that day, he was relieved. He had accepted the retiral dues on 7th October, 2008. He had also claimed interest over the amount of gratuity paid by filing an application. In the case of Shambhu Murari Sinha (supra), their Lordships have opined in the said case that before the appellant was actually relieved
from his service as he had withdrawn his option for voluntary retirement by sending letters, the jural relationship of employee and employer had not come to an end and, hence, he had the locus poenitentiae to withdraw the letter of resignation. By applying the same logic to the case at hand, the petitioner could have withdrawn his resignation while he was not relieved and his date of relieve was postponed till 30th November, 2007. He chose not to do so. He allowed himself to be relieved. He also accepted the reitral benefits. Thus, the jural relationship became extinct. There was severance of status. The relationship between the employer and the employee came to an end. Prior to that date, the resignation had already been accepted. Had the employee submitted an application for withdrawal of resignation during the postponed period, the matter would have been totally different. That is not the factual scene. Ergo, we are disposed to think that the tribunal is not correct in holding that the acceptance of resignation was not acted upon.
In view of above, unless the employee is relieved of the duty after acceptance of the resignation, jural relationship of the employee and the employer does not come to an end. Meaning thereby if an employee commits a misconduct till the master servant relation subsists, disciplinary action can be taken against the servant. But under section 18(1) of the Act, no employer shall dispense with the services of an employee employed continuously for a period of not less than six months, except for a reasonable cause and without giving such employee at least one month’s notice or wages in lieu of such notice. However that such notice shall not be necessary where the services of such employee are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an inquiry held for the purpose.
Your apprehension is that since in last one month company has put you on Perfomance improvement plan, can your company terminate you citing performance reasons. Bad performance allegations may fall under the purview of inefficiency. That has to be proved according to facts of each case. It varies from case to case.
First of all, since your offer to resign has been accepted by your employer, they are barred now to terminate you simplicitor as per terms of contract or in terms of main part of section 18(1) by allegedly covering under “reasonable cause”. Thus the only recourse available is to terminate you by punishment by resorting to proviso of section 18(1) of the Act whereby services of an employee are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an inquiry held for the purpose. They are supposed to give you warnings regarding inefficiency and hold domestic inquiry in accordance with the principles of natural justice. If it is bad in law, then the termination can be set aside.
It is worth pointing out again that under section 18(1) of the Act, no employer shall dispense without giving such employee at least one month’s notice or wages in lieu of such notice. Thus on parity, the employee cannot be discriminated by requiring an employee to give more than one month’s notice or wages in lieu thereof. Any contract contrary to these statutory provisions is void. Thus you are deemed to have been relieved in the eyes of law after completion of one month’s notice period expiry which you have already served. Let the time sail smoothly otherwise take this line of action firstly to combat in the battlefield.
Thanks
Sushil
From India, New Delhi
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