Employer Harassment on Early Relieving
Kapil Bhatnagar
(Querist) 30 September 2016
This query is : Resolved
I joined an organization on 20th July. The organization has probation period of 6 month. The Job require 100% travel on different states, which was not explain to me in the beginning.
Since August my family start facing some medical issues. Therefore it is very difficult for me to manage, Hence I resigned on 6th September.
The appointment letter says I need to serve 3months of notice Period, which is not possible for me.
I have already served one month of notice period and I am ready for buy back option, but organization is not ready.
I have discussed with HR and manager, but both are not ready to relieve me early.
Can I take legal action against them? Since I am getting mental harassment.
Raj Kumar Makkad
(Expert) 30 September 2016
One you agreed with the terms and conditions of the employment without any hitch, are bound to follow.
It is the discretion of the management to allow you buy-back the notice period. If management is not ready for that, you can legally not force it.
In case you leave the job without getting NOC, can face subsequent problems so better to pass the period peacefully.
Kumar Doab
(Expert) 30 September 2016
The notice period of 90 days may not be necessarily applicable in your case.
The notice period/pay is part of service conditions that are governed by various enactments and if you are covered, then these shall prevail upon any private agreement/rule/policy drafted by employer and signed with employee e.g; appointment letter/Service Rules/HR policy/employ handbook/contract of employment etc etc……………
Guest
(Expert) 30 September 2016
You have the need to check the provision of resignation in the T&C of appointment in your appointment letter. Act accordingly.
Kumar Doab
(Expert) 30 September 2016
What is this establishment; Commercial, Industrial?
What is its line of business?
How many persons are employed in it?
Does standing order apply in your case; Model/Standing?
What is your designation and nature of duties?
Do you have any power to sanction (Not just recommend) leave/increment/appoint/terminate/appraise/grant OT etc etc…………..
Can anyone change/cancel your recommendations?
How many persons report to you?
You are in which state?
Your service is under probation or confirmed (Noted; under probation)?
For how many months you have been working? (Is it since 20th July, 2016; You have not posted the year)
Are you a member of any employee’s/trade unions?
Have you ever noticed employer that; Job require 100% travel on different states, and it was not explained in the beginning?
Is HR and manager your employer?
Do they have any power ( vested by board) to decline notice pay in lieu of notice period?
Kapil Bhatnagar
(Querist) 01 October 2016
Hi Usha,
Here are the answer :
What is this establishment; Commercial, Industrial? - > Global IT services and solutions provider with presence in 22 countries. Establish in 1997.
What is its line of business? - > The organization is in IT infra Support.
How many persons are employed in it? -> 20000 employee.
Does standing order apply in your case; Model/Standing? - > no
What is your designation and nature of duties? Network Architect and provide network support in IT projects.
Do you have any power to sanction (Not just recommend) leave/increment/appoint/terminate/appraise/grant OT etc etc………….. --> No
Can anyone change/cancel your recommendations? --> yes, Project Manager has right to reject my recommendation.
How many persons report to you? -> none
You are in which state? -> Mumbai
Your service is under probation or confirmed (Noted; under probation)? -> Probation
For how many months you have been working? (Is it since 20th July, 2016; You have not posted the year) --> yes, Since 20th July2016 ( total 70 days in which 25 days in notice, since I was not comfortable with the work)
Are you a member of any employee’s/trade unions? --> No
Have you ever noticed employer that; Job require 100% travel on different states, and it was not explained in the beginning? --> I was informed for travel sometime, However In 2months of Service I travel multiple times to Delhi and multiple time in Mumbai in their different Offices, which was not explained to me in the beginning.
Is HR and manager your employer? They are the part of Organization, but in my case their confirmation helps in relieving.
Do they have any power ( vested by board) to decline notice pay in lieu of notice period? -> Yes, HR has the power.
Rajendra K Goyal
(Expert) 01 October 2016
Agree with the advice from expert Kumar Doab.
Author need to reply the questions from expert.
Kumar Doab
(Expert) 01 October 2016
You have posted that:
"Have you ever noticed employer that; Job require 100% travel on different states, and it was not explained in the beginning? --> I was informed for travel sometime, However In 2months of Service I travel multiple times to Delhi and multiple time in Mumbai in their different Offices, which was not explained to me in the beginning."
You have not replied to: "Have you ever noticed employer that; Job require 100% travel on different states, and it was not explained in the beginning?"
If yes is it in writing?
Kumar Doab
(Expert) 01 October 2016
Expert Ms. Usha Kapoor,
The author has addressed you.
Pls revert.
I shall be posting my limited understanding.
Kapil Bhatnagar
(Querist) 01 October 2016
@Kumar, I am not clear about your point, "The notice period/pay is part of service conditions that are governed by various enactments and if you are covered, then these shall prevail upon any private agreement/rule/policy drafted by employer and signed with employee e.g; appointment letter/Service Rules/HR policy/employ handbook/contract of employment etc etc…………… "
However, I am adding appointment letter T&C, which are signed by me. Apart from this there is no policy by HR and nothing is sign by me.
PROBATION :
You will be on probation for six months form the date of Joining. The Company reserves the right to confirm your employment prior to the end of the Probation period or extend this period, if necessary. On successful completion of probation, your appointment will be confirmed in writing. Termination of employment :
1) Either party will be allowed to terminate the contract of employment by giving three months of notice in writing, subject however to the company’s right to pay basic salary in lieu thereof.
2) However, should you sign any service bond/undertaking/ agreement with the company. As a part of your employment process or later in course of your employment with the company, you will then not be entitled to terminate your employment with the company unless you comply with the terms and conditions of the Bond / Undertaking / Agreement in addition to the above.
3) The company shall have the right to terminate this agreement forthwith, without any notice and without any salary in lieu of notice period in the event of any of the following :
a. Breach on your part of any terms and conditions of this contract and any other rules made applicable to you in respect of your employment with us.
b. Violation on your part of the company’s rules with regard to the authenticity and information declared at the time of joining the company.
c. Any misconduct on your part.
d. Failure to carry out any of your duties and obligations.
Kapil Bhatnagar
(Querist) 01 October 2016
@Kumar Doab "Have you ever noticed employer that" --> Yes, After resigning I update him this point.
Kumar Doab
(Expert) 01 October 2016
Your 2nd last post in the thread is addressed to; @Kumar. Is it addressed to me or Raj Kumar Makkad?
Your last post does not clarify the point raised by me : "Have you ever noticed employer that; Job require 100% travel on different states, and it was not explained in the beginning?"
If yes is it in writing?
Rephrasing again: Did you raise the matter with employer in writing (under proper acknowledgment with a copy to you) on 100% travel?
I shall be posting my limited understanding.
Kumar Doab
(Expert) 01 October 2016
>>> You can resolve the matter by your own skills or with support from IT /ITeS employee's unions that have affiliated with trade unions, Trade Unions, Officials in Dept. of Labor of your state, a very able counsel specializing in Labor Law /service matters.
>>> If you are not member of IT /ITeS employee's unions, it is your loss. These unions have done good job. Shiv Sena had floated a separate wing for IT /ITeS employees.
>>> You have confidently stated; "Does standing order apply in your case; Model/Standing? - > no "
Are you, yourself sure OR have you checked and confirmed?
OR has the state granted exemption to the trade/establishment?
It is imp. So either confirm or recheck and confirm.
>>> Extract of appointment letter posted by you:
1. It is not clear the T&C on notice period of three months, is during probation period or after confirmation.
You may show the pages to your counsels.
2. The language denotes (company’s right to pay basic salary ); if company initiates termination it can tender notice pay @ basic salary in lieu of notice period.
It is studiously silent on; if employee initiates termination.........?
You may clarify.
Kumar Doab
(Expert) 01 October 2016
The fraternity of employees in IT/ITeS was made to believe and/or they believed that they are a class above………………..are not Labor…………… and are not within the purview of enactments that provide protection under the segment of Labor Laws in Republic of India.
The fraternity of employees in IT/ITeS was made to believe and/or they believed that they are not covered by the def. of ‘Workman’ as in Industrial Dispute Act (ID Act). Courts of law have decided that IT/computer/software professionals/engineers are covered by the def. of Workman.
ID Act does not lay down notice period on employee, covered by the def. of ‘Workman’, as in the Act.
The fraternity of employees in IT/ITeS was made to believe and/or they believed that Labor Laws are not applicable in establishment that are in SEZ/Software-IT Parks…………………..and/or the SEZ/IT policies of the state has granted exemption to such industry from such labor Laws. The fact is that NO such policy ever granted any such blanket exemption from such labor Laws.
The establishments in IT/ITeS/BPO/KPO/Software etc etc are covered by the ( Name of the State) Shops & Establishments Act that was enacted to govern the service conditions of employees working in such establishments. The notice period/pay is part of service conditions.
Bombay Shops & Establishments Act and Bombay Shops & Establishments Rules is so employee friendly.
Bombay Shops & Establishments Act; Sec; 66; does not lay down (verbatim) any notice period/pay for employee. It lays down notice period and notice pay in lieu of notice period for employer.
For service period of 2 months 11days (as in your case)::: notice period/pay is =NIL.
Even if equitable discretion (for employee) is screamed on top of voice/shouted/shrieked/appealed/prayed:::: even than:::: notice period/pay, service period of 2 months 11days (as in your case)::: is =NIL.
Kapil Bhatnagar
(Querist) 01 October 2016
@Kumar Doab
>>> You have confidently stated; "Does standing order apply in your case; Model/Standing? - >
I am not clear with this point. What is this standing order?
With whom I can get clarity on this?
At present I am not the member of IT/ITES unions, but I am checking If I can apply for.
I have discussed with counsels that appointment letter doesn’t talk about employee leaving, then why are you forcing me to serve 3months of notice period.
But she said we can’t relieve you, if you don’t serve 3 months of full notice period and If you leave without notice that count as absconding.
What do you suggest in this case?
The company is in SEZ
Adding, bombay shops and establishments act 1948 Sec 66, updated on http://www.sharpfacility.com/Labour%20Laws/General/BARE%20ACT/Shop%20and%20Establishment.pdf
Talks about When Employer Termination.
It doesn't talk about cases when employee wants to terminate the contracts.
My employer is not ready to relieve me even after serving a notice period of one month on One month of joining.
Kumar Doab
(Expert) 01 October 2016
>>> You have not replied to:
"Rephrasing again: Did you raise the matter with employer in writing (under proper acknowledgment with a copy to you) on 100% travel?"
>>> It is good that you have discussed with counsels (I have discussed with counsels ).
>>> Don't remain entangled with HR personnel or line managers.
Escalate to good offices of appointing authority, MD etc.
If GRC (Grievance Redressal Committee), Works Committee exists, try with them.
>>> Standing Orders; Model/Certified:
Check with IT/ITES/Trade unions, Certifying Officer that is usually DLC in Dept. of Labor, Inspector appointed under Bombay Shops & Establishments Act, a very able counsel specializing in Labor Law /service matters at your location.
>>> Absconding: If employee has resigned then employee has severed the employer-employee relationship the moment employee has resigned.
In such case 'Absconding' shall be false charge.
Absconding; is derogatory also.
Obtain copy of notice/final resignation and proof of dispatch/delivery.
If already sent by say email ( preferably from personal email id) download copies and POD ( read and received report) and sent by letter thru Redg. Post and download POD from India post website and obtain POD/certified copy of run sheet of postman from PO ( or thru RTI). Send scanned copies by email.
>>> Relieving; Reliving letter signifies; employee has resigned and nothing is due against employee.
Tender some reasonable notice say; 7 days to enable the employer to initiate exit formalities.
You may mention to whom you should handover the charge, assets etc within and upto LWD i.e dated.............as tendered by you, vide notice of resignation dated;..........and as per clause number...in appointment letter dated......issued to you......
It is time to place on record in writing that NO tasks are pending at your end as on date (if true) and routine duties be assigned on daily basis and/or that can be completed within upto LWD i.e. dated....................
In your own words you may place on record that NO stinker/SCN etc etc has ever been issued to you (if true) and you have never caused any loss to establishment and have fetched revenue/profits.
Download every relevant document.
you should be able to thwart/check/contest......successfully any attempt by employer or its attorney's that you have caused any loss or have not ended employer-employee relationship.
Request to supply by Redg. post from post office the: acknowledgment and acceptance of notice/final resignation, FnF statement,FnF dues by bank, service certificate, relieving letter, Form16, PF number and a/c slips, salary slip of each month,acknowledgment of handover of charge/assets, NOC/NDC.............within and upto LWD.
Kumar Doab
(Expert) 01 October 2016
You have added in your last post ( Adding).
You have posted that:
"I have discussed with counsels..............But she said we can’t relieve you, if you don’t serve 3 months of full notice period and If you leave without notice that count as absconding.........................The company is in SEZ"
It is felt that it is all verbal and you have not recorded (audio/visual/minuted/witnessed).
Go thru SEZ policy.
The state of Maharashtra has enactments; PULP,MRTU, and Dept. of Labor also has provision of informal meetings between employer-employee.
Take help of your counsels to understand, act and draft/structure your representations.
Guest
(Expert) 01 October 2016
Dear Kapil Bhatnagar,
In the whole of long discussions, you do not seem to have discussed on the point of terms & conditions on resignation & termination, as contained in your offer letter or appointment order, which is the main document to be referred to find solution to your problem.
The terms of resignations, whether on probation or if regularly appointed, can be expected to have clearly specified about the terms of resignation.
Everything else is more than sufficient to side-track the main issue, which seems to have happened through so many questions and answers.
You may better check the offer letter/ appointment order to find the answer or consult someone by getting that examined properly, if doubt still persists.
Kapil Bhatnagar
(Querist) 01 October 2016
@P.S Dhingra, Please find the below T&C from appointment letter :
===================================
PROBATION :
You will be on probation for six months form the date of Joining. The Company reserves the right to confirm your employment prior to the end of the Probation period or extend this period, if necessary. On successful completion of probation, your appointment will be confirmed in writing.
Termination of employment :
1) Either party will be allowed to terminate the contract of employment by giving three months of notice in writing, subject however to the company’s right to pay basic salary in lieu thereof.
2) However, should you sign any service bond/undertaking/ agreement with the company. As a part of your employment process or later in course of your employment with the company, you will then not be entitled to terminate your employment with the company unless you comply with the terms and conditions of the Bond / Undertaking / Agreement in addition to the above.
3) The company shall have the right to terminate this agreement forthwith, without any notice and without any salary in lieu of notice period in the event of any of the following :
a. Breach on your part of any terms and conditions of this contract and any other rules made applicable to you in respect of your employment with us.
b. Violation on your part of the company’s rules with regard to the authenticity and information declared at the time of joining the company.
c. Any misconduct on your part.
d. Failure to carry out any of your duties and obligations.
========================
I am in probation period, since I join the Company on 20th July 2016 and with in 45 days I resign after understanding the work. At present I am serving notice period, but I don't want to serve 3 months of notice period.
Kumar Doab
(Expert) 01 October 2016
The extract of the appointment letter has already been posted by you and discussed.
You have also posted that 'I have discussed with counsels that appointment letter doesn’t talk about employee leaving'
It can not be exploited by employer by statements that it suits it by claiming that its executive can fill in the blanks.
Contract of employment should promote equatable discretion or it can easily be termed arbitrary.
The 1st para speaks about T&C of confirmation.
It can be claimed as gathered that clauses under 'Termination of employment ' are subsequent to confirmation of service.
Equitable discretion: Employee can tender notice pay @ basic pay, subsequent to confirmation of service.subsequent to confirmation of service.
Take up the matter with your counsels that you have already contacted and focus on nature of duties on record.
If you are covered by the enactments then the appointment letter may not be even worth the piece of paper on which it is written........................and /or the T&C on notice period of 90 days is void.
Kapil Bhatnagar
(Querist) 01 October 2016
@Kumar Daob, Sorry I misunderstood the counsels.
I thought you were referring HR BU as counsels. Till now I have discussed with Manager, HR BU, HR heard, Manager's supervisor.
I have not discussed with any Counsels. Are those people in Counsels part of the same organization or separate entity?
Kumar Doab
(Expert) 01 October 2016
It was clearly mentioned that; 'very able counsel specializing in Labor Law /service matters at your location.'
At Maharashtra yo can find counsel par excellence.
Standing orders, Bombay Shops and Establishments Act shall prevail upon appointment letter.
The extract of appointment letter appointment letter posted by you has already been discussed.
Rajendra K Goyal
(Expert) 02 October 2016
Well analysed and guided by the expert Kumar Doab.
You can discuss with local lawyer expert in service matters.
Kumar Doab
(Expert) 02 October 2016
Author @ Kapil Bhatnagar,
The thread is open.
You may come back for support from us.
Raj Kumar Makkad
(Expert) 02 October 2016
Author is silent but we are ready to help him even then as query has not been though to be resolved.
Kumar Doab
(Expert) 02 October 2016
Author has posted yesterday.
Author shall be replied for sure, whenever next time he has an issue on matter and posts.
The query is a good query and the matter affects huge number of employees and amongst them are our sons,daughters,fellow countrymen.
Raj Kumar Makkad
(Expert) 02 October 2016
We all are here to welcome author once he wakes and posts further question. be sure, none is legging behind. all are ready to serve mankind through this querist.
Kapil Bhatnagar
(Querist) 02 October 2016
@Kumar Doab, Many thanks for providing such helpful information. Your information helps in fighting against the Employer.
I would like to keep this post 2 more days. I hope that would be fine.
Kapil Bhatnagar
(Querist) 02 October 2016
@Kumar Doab, Many thanks for providing such helpful information. Your information helps in fighting against the Employer.
I would like to keep this post 2 more days. I hope that would be fine.
Rajendra K Goyal
(Expert) 03 October 2016
Good guidance and work by the expert Kumar Doab, keep up your efforts.
Kumar Doab
(Expert) 03 October 2016
Author @ Kapil Bhatnagar,
I prefer to post such matters.
This thread shall always remain, until the admin decides to remove it.
Why 2 days, You may post anytime.
You will be thoroughly supported.
Guest
(Expert) 03 October 2016
You are welcome to keep this thread open for indefinite period.
Kapil Bhatnagar
(Querist) 11 October 2016
Kumar Doab, I would like to update, I am able to get relieve with those inputs provided by you. Many thanks for your support. Now we can close this.
Kumar Doab
(Expert) 11 October 2016
You are welcome.
I am delighted to know that you have been successful without need of litigation and without any blot on your career.
Employees like you that are focused, determined, and apply the knowledge and skills, usually succeed.
There are many threads at LCI in which employees have posted that that they have succeeded with inputs that are shared with them.
It gives me immense satisfaction.
God Bless.
Kumar Doab
(Expert) 11 October 2016
Share with other fellow employees and help others.
In case of issues, encourage them to post.
I shall try my best.
Kapil Bhatnagar
(Querist) 11 October 2016
I will share this with my other colleagues, The information mention in this post are very helpful.
Kumar Doab
(Expert) 11 October 2016
You are welcome.
Kumar Doab
(Expert) 11 October 2016
Yes you may happily share.
Generically speaking employees may be from segment:
---that are COVERED by umbrella of Labor laws ( at least 'Workman' as in ID Act, 'Employee' as in Shops & Estbs Act)
---that are NOT COVERED by umbrella of Labor laws ( at least 'Workman' as in ID Act, 'Employee' as in Shops & Estbs Act)
Both can succeed.
You may like to share another thread at:
http://www.lawyersclubindia.com/experts/notice-period-618086.asp
Kumar Doab
(Expert) 12 October 2016
Thank you Expert Mr. Rajendra K Goyal.
Kumar Doab
(Expert) 12 October 2016
@ Kapil Bhatnagar,
Is the author in other thread your colleague/companion;
http://www.lawyersclubindia.com/experts/Regarding-getting-relieving-documents-619766.asp
If possible extend some support to him.
