Urgent & most imp -relieving letter not issued
manoj rathi
(Querist) 30 June 2015
This query is : Resolved
Hi All,
PLEASE HELP -
My X employer ( say Company X) is not issuing relieving letter & My Present employer (say company Y) wants the same.
My Terms of appointment with X employer was to serve 90 days notice period which i didnt;
As per appointment letter of X company conditions -
"""
Cessation of service:
By 90 days’ notice served in writing by either side immediately after completion of probationary period , or by payment of basic salary in lieu of notice if management approves , or unexpired part of the notice period or remaining absent for a period of 90 days on account of ill health ,accident or disability or any other reason without being sanction, being medically unfit if same is certified by qualified medical practitioner appointed by co & without notice or payment in lieu of notice on your being found guilty of any gross default or misconduct or for non-observance of any rules of the company ,or terms of employment.
Provided always that in the event of your serving the notice or termination of contract of employment ,the company in its absolute discretion may require you to serve the entire period of notice to clear all pending issues relating to your functions and for proper handing over charge to your successor.The decision of the company in the matter of date of relieving shall be final and binding and it shall not be lawful for you to take up employment elsewhere during the notice period."""
I left Job in Mar'15 & Joined Y employer in Mar'15.
Im ready to buy out Notice period, further my 50 Leaves are accumulated.
But They are not ready to issue relieving letter .
X employer has made my replacement in April'15.
My Present employer ( say Y company) had issued me appointment letter on basis of written declaration on blank paper that i will submit relieving letter in next 2 months and now they are threatning to terminate me.
Pls advise legal position how to obtain relieving letter.
Kumar Doab
(Expert) 01 July 2015
You have rather invited the trouble for yourself.
Did you consult elders in the family, competent and experienced well wishers, Employee's/Trade Unions leaders, an able labor Law Consultant/Service Matters Lawyer/law firm before started acting on your own?
Did you tender notice of resignation or resignation with immediate effect?
Has the employer supplied you any acknowledgment, acceptance of notice/resignation or declinature to accept resignation in writing?
Can employer terminate employment without tendering notice of 90 days and without seeking approval of employee for notice pay in lieu of notice period?
You should have negotiated properly with both current and future employers.
The past employer has committed transgression by writing :
"The decision of the company in the matter of date of relieving shall be final and binding and it shall not be lawful for you to take up employment elsewhere during the notice period."""
Since no employer is a lawmaker and all employers and establishments are inferior,subordinate,servant to law of the land and right of citizens of republic of India.
Resignation can be without permission and notice.
Has the employer charged you so far for causing any loss or claiming any damages?
Have you communicated in writing to adjust notice pay in FnF statement showing computation of days worked, earned wages, leave encashment,OT,Bonus,incentives, deductions if any...................for verification and acceptance by you? If NO demand it.
Firm up your next venture ASAP.
Approach an n able labor Law Consultant/Service Matters Lawyer/law firm with copies of all docs on record and proceed further under expert guidance of your lawyer.
M V Gupta
(Expert) 01 July 2015
In the circumstances stated by you, you are at the total mercy of ur previous employer to get the relieving letter. U do not have any cause of action to get relief from the labor authorities or court. If u were in workman category in ur previous Company u may approach the Asst Labor Commissioner for intervention. Try ur luck.
Kumar Doab
(Expert) 01 July 2015
You should provide full information, pointwise to above and following points!
What is this establishment registered as: Commercial,Industrial?
What is its line of business:IT,ITeS,banking etc?
How many maximum persons are employed in it at any point of time?
The Redg Office,Corporate Office of the company, and your reporting office was located in which state?
What was your designation and nature of duties?
Do you have leave policy, HR policy,Service Rules and Regulations,Conduct and Discipline Rules, Exit Policy that are mentioned in the appointment letter?
What was your monthly salary?
Was any appointment letter, salary slip of each month, PF number with a/c slips,ESIC card,Form16 given to you?
Did you tender notice of resignation? If yes of how many days?
Did you resign in writing under proper acknowledgment (followed by letter under acknowledgment or by Redg. Post) , and mention NO tasks are pending at your end and to whom you should handover the charge?
Has acknowledgment of notice of resignation, supplied to you?
Are you a member of any employee’s/Trade Unions e.g. CITU/INTUC/AITUC/BMS etc?
Rajendra K Goyal
(Expert) 05 July 2015
Well advised by the expert Kumar Doab, agree to it.
manoj rathi
(Querist) 11 July 2015
Dear Sir
You should provide full information, pointwise to above and following points!
What is this establishment registered as: Commercial,Industrial?
It is mfg & trading organisation of washing machine, AC i.e White goods.
I was part of trading office
What is its line of business:IT,ITeS,banking etc?
FMCD- fast moving consumer goods
How many maximum persons are employed in it at any point of time?
500-1000
The Redg Office,Corporate Office of the company, and your reporting office was located in which state?
regd/corporate office- kolkata
reporting regional office- new delhi
What was your designation and nature of duties? Accountant of a branch office
Do you have leave policy, HR policy,Service Rules and Regulations,Conduct and Discipline Rules, Exit Policy that are mentioned in the appointment letter?
Yes i hav given exit policy mentioned in appointment letter in query itself.
please help
What was your monthly salary? Rs 55k
Was any appointment letter, salary slip of each month, PF number with a/c slips,ESIC card,Form16 given to you? YES
Did you tender notice of resignation? If yes of how many days? Yes i tender, 5 days
Did you resign in writing under proper acknowledgment (followed by letter under acknowledgment or by Redg. Post) , and mention NO tasks are pending at your end and to whom you should handover the charge?
Has acknowledgment of notice of resignation, supplied to you?
I have resigned over mail & they responded via mail to serve notice period .
Task- I didnt mentioned.
Are you a member of any employee’s/Trade Unions e.g. CITU/INTUC/AITUC/BMS etc? NO
manoj rathi
(Querist) 11 July 2015
Pls help..........................
Kumar Doab
(Expert) 11 July 2015
You have not replied to all points.
Although you have titled your query as ‘Urgent & most imp’ you have taken 10 days to reply.’
If you are not a member of Employee’s/Trade Unions then it is your lapse to your disadvantage.
At Delhi you can access able Labor law Consultant-Service Matters Lawyer-Law Firm par excellence.
The local office, Circle/Zonal office in Delhi might be covered by the Delhi Shops and Commercial Establishments Act (that is so employee friendly) and might have registered under Delhi Shops and Commercial Establishments Act, and if yes or even if not registered despite being covered………………………………..your counsels in Employee’s/Trade Unions e.g. CITU/INTUC/AITUC/BMS etc /an able Labor law Consultant-Service Matters Lawyer-Law Firm……………. may opine that you would be covered by the def. of ‘Employee’ as in the Act…………………….and even as ‘Workman’ as in ID Act.
You may go thru the registration Certificate that has to be displayed ear entrance and also note down the name/designation of Employer/Manager/Agent of Employer as in the registration certificate.
If you are covered by the def. of ‘Employee’ as in the Delhi Shops and Commercial Establishments Act then notice period of any employee that has worked (as per length of service) is 30 days maximum ……………………and NIL if employee has worked for less than …………..months……………… and this enactment will score over/prevail upon any private agreement/rule/policy that employer has signed with employee e.g. appointment letter/contract of employment/HR policy/Termination Policy etc………………….
There are various decisions and judgments by Chief Inspector/Courts of Law supporting it and no Labor Official can accept notice period beyond the provisions of the Act.
If you are covered by the def. of ‘Workman’ as in ID Act and employer does not have certified standing orders covering your designation thus implying application of Model Standing Orders then you may go thru Sec13-18…………………….and notice period is NIL during probation and max.30 days after confirmation of employment and employee can tender notice pay in lieu of notice period, and employer is responsible for faithful observance of standing orders or can be penalized. Standing orders are certified on the lines of Model Standing orders. Standing orders (Certified/Model) being instrument of Law/Statue shall prevail upon any private agreement/rule/policy that employer has signed with employee e.g. appointment letter/contract of employment/HR policy/Termination Policy etc………………….
IF NO SERVICE CONDITIONS ARE DRAFTED BY EMPLOYER AND APPLICABLE AS PER ESTABLISHMENT THEN SERVICE CONDITIONS OF EMPLOYEES IN DELHI SHALL BE GOVERNED BY THE DELHI SHOPS AND COMMERCIAL ESTABLISHMENTS ACT …………… AND IT HAS BEEN DULY STATED IN DELHI SHOPS AND COMMERCIAL ESTABLISHMENTS ACT.
It has already been posted that the past employer has committed transgression by writing :
"The decision of the company in the matter of date of relieving shall be final and binding and it shall not be lawful for you to take up employment elsewhere during the notice period."""
Since no employer is a lawmaker and all employers and establishments are inferior, subordinate, servant to law of the land and right of citizens of republic of India.
Resignation can be without permission and notice.
It is upto you to resolve applying your skills, skills of your counsels, or agitate later at any point of time later. However you should build favorable written record while in employment under proper acknowledgment, and avoid signing any FnF statement.
manoj rathi
(Querist) 11 July 2015
Sir, It is covered by Shop & Est Act.
My query is i was workig at Jaipur.
My reporting was at Delhi.
Can i file legal at JAipur ?? & What are my chances to win the case ? If any Questions are pending please let me know i will clarify..
I was working in branch at jaipur . i cant have complete company manpower detail.
Kumar Doab
(Expert) 11 July 2015
If you are not a member of Employee’s/Trade Unions then it is your lapse to your disadvantage. Unions in Rajasthan have traditionally been very active and effective.
At Jaipur you can access able Labor law Consultant-Service Matters Lawyer-Law Firm par excellence.Visit Labor Court and find out yourself.
It is believed that the establishment has not charged you with causing any loss, leaving without proper handover and assets.......................and you have mentioned in any of the communications (or even now) that NO tasks are pending at your end and to whom you handover the charge?
You can in a gentle tone write to current employer that you have not received the ...................from past employer and since these are to be supplied by past employer..................you can supply only when these are supplied to you..................and even that you joined them since they wanted you to join in 5 days and now they should leave you in such a mess................
You can thru your counsels unions/lawyer preferably, proceed further and prey for stay on termination...............
