Essentials of valid resignation and
acceptance, critical review
The whole industry,
be it micro, small, medium, or large are operating either in virtual or near
virtual web of process, right from recruitment to separation. However, the
labour laws remain static despite introduction of labour codes few years ago.
While the labour codes have brought out a series of simplifications and ease of
process, fundamental principles on bare compliance and fair practices are
essential for dispute free management of any organization.
This brief analysis focusses on the essentials
of a valid resignation process, in the light of ‘asked to resign’ dilution of
the due diligence process while considering the resignation process. Be it a
strong HR system or a bare minimum structure, the process remains to be
mechanical with significant vagaries.
While the instances
of ‘asked to resign’ are clear cut grey area and an unfair practice even
ordinary cases of voluntary resignations are recalled or withdrawn when the
employee realizes lack of outside opportunity, an offer not fructifying in to
an appointment and certain weird circumstances. However, if the employer has a
robust process including resignation (though thought cumbersome, it is ideal to
establish this mechanism to minimize litigation, liability, besides reputation.
The basic rule for
compliance for a resignation would be to exercise due diligence and issue the
acceptance of resignation, duly approved by the competent authority (usually
the authority who appoints the employee). In the digital era it is not
cumbersome as such an acceptance can be a digital mode (not an email which is
susceptible to tampering)
Another key aspect
of process is while accepting a resignation, the employer at times choose to
relieve an employee with immediate effect (without considering the due notice
period). While employer has the option to waive such notice relieve a person
early, such fact has to be stated and employee paid due wages for the period of
notice, unless such waiver is at the request of the employee.
In a recent case a
senior managerial employee tendered his
resignation and the Line Manager in his reply just wrote back, wishing him all
the best! The resignation was not expressly accepted not even acknowledged. The
employee rolled back his decision and demanded resumption of his employment, by
when the HR had initiated the exit process. The employee filed a suit for
declaration his own resignation as null and void managed to obtain an order
restraining any coercive action. Though the suit was dismissed, the ad hoc
salary payments made by the employer basis interim order without work remains
to be returned by the employee, in the guise of filing appeal.
The recent judgement of the Madhya Pradesh
High Court, reported in the Labour Law Reporter (2023 LLR 827) emphasizes that
a resignation letter will be considered as a fraudulently obtained one if there
is lack of consistency in the evidence of the management. Other Key points of
importance in the judgement are :
IMPORTANT POINTS
- Acceptance
of resignation by the incompetent authority instantly when submitted is
not proper.
- Inference
by judicial authority that resignation is a forged one is proper in view
of the fact that resignation was not sent to the competent authority even
when the resignation was addressed to Senior Depot Manager who did not
have any authority to act upon such resignation.
- It is
expected from the model employer that when a workman submits his
resignation for immediate acceptance, management should ensure that
workman has been apprised of the consequences of the resignation before acceptance
of resignation immediately without one month notice.
- The
Rights of Persons with Disabilities Act, 2016 provides Principles for
empowerment of persons with disabilities enumerate freedom to make own
choices and independence of persons, full and effective participation and
inclusion in society and equality of opportunity besides other principles,
to address problems of differently abled employees.
- It is
well settled principle of law that Fraud Vitiates Everything.
For detailed judgement, you may refer LLR
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