Not got experience and relieving letter
ashish
(Querist) 20 April 2015
This query is : Resolved
Hi,
Please find the situation depicted below:
1. I was a part of MNC in Pune as Software Engineer and completed 4 years. During my tenure I got many appreciation for my work as my technical skills are good. I have resigned in January because my mother was admitted to Hospital and needs me to take care of her. After resignation in January, I had meeting with HR and she told me that I need to serve 3 months notice period and if I take leaves during the notice period, my notice period will get extended.
At that time I was willing to serve the notice period for 3 months.
2. I have taken leaves during notice period in January as well as in February as my mother was admitted to hospital. I got the full salary for January and February despite my leaves.
3. As per last conversation with HR, I came to know that my last day will be on March.
At that time, HR did not tell me that I need to pay the money which I got in excess for the month of January and February. So I agreed to leave the company without serving the 3 months notice period.
4. I have initiated clearance on last working day and after that I come to know that I need to pay the money which I received in the month of January and February as I was on leave. HR told me that until the payment, I will not get my Experience letter and Relieving letter.
I thought that I was having leaves and due to which I got full salary despite I was on leave.
5. After that I told HR that I can serve the notice period of 3 months as well as the leaves taken by me on notice period.
But HR were not agreed to it and said that there is no position for me to take back at work and my ID was terminated.
6. It was mistake by the company that they gave me extra salary despite I was on leave.
If there was any mistake in the system then I wanted to correct it on humanitarian ground and I wanted to serve the notice period for the extra payment I got but HR refused it.
At any meeting or conversation with HR, I did not ask for early release from the company.
Please find the below company policies:
1. As per Company's Policy if the employee have taken leaves during notice period then the notice period will be extended and employee need to serve the extended notice period for the leaves taken by employee.
2. As per Company's Policy if the Employee do not have leave balance then the leaves are treated as Leave Without Pay and the amount will be deducted from the salary. But in my case amount did not deducted from salary and I got full salary which is system's mistake.
3. I did not ask for early release from the Company. As per company's policy if company release the Employee before notice period completion, then Company needs to pay Basic Pay of the remaining days of the notice period to the employee.
Here my notice period will be completed after 3 months from date of resignation as well as leaves will be added in the notice period as I have taken leaves during notice period as per Company's Policy.
Excerpt of the situation is - I got excess salary from Employer despite my leaves on notice period. I did not know this because I was busy with my mother's hospitalization. On last working day, I came to know that I need to pay the excess amount I received from the Employer then only I will get the Experience and Relieving letter.
It was not my fault that I received the excess money. After I come to know that I need to pay money to the Employer that I received mistakenly, I was willing to serve the complete notice period but HR refused it and said my ID was terminated.
Can I take legal action on the company, If yes please suggest if I need to go with Labour court or Civil.
Could you please help me on this.
Vijyant Nigam (09807349001)
(Expert) 21 April 2015
The simplest way is to Return the excess amount of salary.
If you are clever than a crow and interested in prolonging the matter then the Labor Court is for you.
Keep in mind that An Advocate will also charge you fee which could be double or triple of that excess amount.
ajay sethi
(Expert) 21 April 2015
return excess money paid to you and obtain experience certificate
Kumar Doab
(Expert) 21 April 2015
At least I am not aware of any law that lays down in your sector if leave is taken during notice period it shall be extended by equivalent period..........................and also that experience certificate or service certificate can be withheld.
Rather service certificate has to be supplied on last day in office.
Has the HR personnel /employer asked to deposit any amount in writing?
Rather it should send the FnF statement ( showing the computation of earned wages,leave encashment,bonus,OT,incentives,reimbursements etc, recovery, notice pay ) and ask to accept final amount or ask to tender payment of final amount if any is due towards you.
You can accept FnF statement if it is correct and reject if it is wrong.
Your entitlement to leave can not be lower/inferior to as defined in Shops and Commercial Establishments Act of your state...........and only be higher/superior.
The private policy of the employer can not prevail upon the Acts/statue/law of the land.
You can even prepare your own tentative FnF statement and send it to good offices of appointing authority,MD,Chairman and ask them to check and verify.
You may not get any relief from HR personnel since he/she has to implement employer's written/unwritten policies for him/her and defend his/her job.
You can take up thru Employee's/Trade Unions/Works Committe/GRC etc.......
The Hr is duty bound to write stating that excess amount was paid and you may refund to get service certificate...
ashish
(Querist) 22 April 2015
Thanks All for your suggestions.
I just wanted out of court settlement.
Should I escalate the matter to higher management or regional commissioner of Labour court ?
Kumar Doab
(Expert) 22 April 2015
The lawyers are trained and skilled in negotiation/conciliation/arbitration skills.
The HR has stated only verbally that your ID (employment ID) has been terminated. It has not been communicated in writing. Termination of ID does not mean your employment has been terminated.
For Termination speaking (written order) passed by competent authority (made competent by board e.g. appointing authority) should be supplied. HR does not seem to a competent authority………….however you alone can find out and confirm.
The notice of resignation can be withdrawn by employee anytime before expiry of notice period.
Employer can not accept resignation before expiry of notice period and you may show the service conditions to your Labor Law Consultant/Service matters lawyer/Law firm and your counsel may opine that if company has terminated the ID/or if it amounts to termination/ or if it amounts to acceptance of resignation before expiry of notice period then company has to tender/offer notice pay to you for shortfall of notice period……………………..and also that you can decline to accept notice pay and demand to complete the notice period.
Notice pay is also defined in enactments applicable to the establishment e.g. Bombay Shops and Commercial Establishments Act (last drawn monthly wages) and company can not draft any private policy on it and if it does it shall be VOID.
Don't remain entangled with HR and in verbal communications. Submit written communications under proper acknowledgment.
Demand FnF statement showing everything as already explained and it can’t be denied.
Everything has Sufficiently been explained.
Approach an able counsel ASAP and spend quality time with your counsel.Your counsel can draft and structure your representations so as to suit your long term interest.
If you are unwilling to escalate or deal with matte, pay! However obtain written communications that your documents (narrate) shall be supplied ON THE SPOT.
Rest is upto you.
T. Kalaiselvan, Advocate
(Expert) 30 April 2015
Well advised by experts, I go with the views and opinions of expert Mr.Kumar Doab.
