Delhi High Court gives relief to an employee of a Fertiliser PSU who was required to pay three months' salary in lieu of notice period.
In the present writ petition, the Petitioner had challenged a communication from Fertilizers and Chemical Travancore Limited (FCTL) asking him to pay 3 months' salary in lieu of serving the notice period on account of his resignation being accepted, as per Rule 36A of the company.
As per the factual background, the Petitioner was appointed as a COO and was asked to serve in the New Delhi office. However, within a few months of his service, he was transferred to the headquarters situated in Kochi. Since, the said transfer was not contemplated in the job proposal, the Petitioner had sought multiple postponements of his transfer in the account of his daughter's board examinations and his own poor health. The company continued to grant him those postponements.
However, on 29.03.2017, he sent a communication to the company asking to be relieved from his services. Consequently, on 31.03.2019 the company communicated that his resignation was accepted and in doing so, the Petitioner was stated to be liable to pay 3 months' salary in lieu of notice pay as per the rules of the company.
Petitioner immediately responded to it through e-mail and conveyed to the respondents that he was not in a position to pay three months' salary in lieu of notice period and that his notice period may be set off against his privileged leave (PL) and for the balance period, he sought waiver. Alternatively, he also requested that he may be allowed to complete the notice period. However, the same was not accepted by the company.
The court perused the job advertisement, appointment offer and the job content to observe that the Petitioner was hired to serve in the Delhi office. Therefore, it was held that Petitioner being asked to be headquartered at Kochi, cannot be said to be considered in consonance with the terms and conditions of his appointment and the same shall be deemed impermissible.
The court also noted that Petitioner's communication for being relieved from his services was not voluntary as it was forced by the circumstances in which such decision was taken. Petitioner left his previous job on the premise that he'll be working in Delhi. Therefore, his continuous seeking of extensions was indicative of the fact that he did not want to be transferred to Kochi.
Justice AK Chawla, then went on to consider the communication sent by the Petitioner on 27.03.2017. It was observed that the communication nowhere mentioned a specific intent for resignation or a specific date from which such resignation would become effective. The court noted that:
'The tone and the tenor of the said communication by itself is indicative of the fact that his such action was not free from any external pressure but for the prevailing facts and circumstances, to tide over the crisis'.
It was also highlighted by the court that Rule 36A unilateral imposition of liability of three months' salary in lieu of the notice. Moreover, in the present case, not just the date of resignation was not clear, but the Petitioner had also agreed to serve the notice period. Therefore, the company wrongfully invoked the said rule against the Petitioner.
Therefore, the court used a writ of mandamus to the company and directed it to release the outstanding dues of the petitioner without insisting for any three months' notice pay in lieu of any notice period.
The Petitioner was represented by Advocates SN Kaul and Vinod Zutshi
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