Rk (Manager) 26 September 2013

Employer not relieving employee-contt

Dear All,

This is continuation wrt my earlier post vide link

https://www.lawyersclubindia.com/forum/Employer-not-relieving-employee-85447.asp.

Synopsis:
I worked in NBFC for nearly 32 months, I have given my resignation mail dated 4th July 2013 asking them to relieve me 30th of July. however this never happened in spite of repeated reminders. After consultation with senior members of this club and with labor commissioner I have marked mail to HR with CC to Head HR asking me to confirm my relieving date, after this mail, every one has taken thing on ego and gave me relieving date on 1st Oct-2013 (to serve entire notice period of 90 days) citing reason that they (HR) are not able to relieve me since no replacement has been found.

Finally on 24th Aug'13 I have marked mail to all concerned including Hear HR telling them that 24th Aug'13 will be my last working date and any discrepancy can be sorted with appropriate authority. By this time I had already served 52 days of notice period and has more than 48 accumulated annual leave available with me which usually gets set off with Notice period (Company does not have leave en cashment concept).

In this mean time i.e from 4/7/13 till 24/8/13 I have consulted lawyers club and met labor commissioner who has advised me to leave organization and join new organization since AP Estb Act and labor Act says only 30 days notice is enough. however he has advised me to take new employer into confidence and appraise them with facts and I have acted accordingly and told new employer about facts and confirmed I will be able to submit relieving letter only when my old employer provides for which they have agreed and post taking written confirmation from them i have left my old employer confirming last working date as 24/8/13.

Now today I have received a letter from my old employer (Signed by Head HR) to come and report organization by 27/9/13 and give written explanation for my unauthorized leave.

I have decided today to reply to Head HR by appraising him once again about the facts and to let him know that I will not hesitate to approach appropriate authority but still being optimistic expects this matter to resolve amicably. Post which I have already prepared a representation which I would like to file with labor commissioner if no response is received by me by 4th Oct.

Kindly advice if my course of action is correct.

Attachments:

Dear XXXX => the final mail which I have sent to my superiors including Head HR.

Dear YYY => Letter which I will be sending tomorrow to Head HR as reply to their notice

Content of Notice sent to me:

Dear Rk,

It has been brought to our notice that you have been absent from work since Aug 25th 2013 till date. This absence is without prior permission from your superiors.

Company considers this absence as unauthorized. Kindly resume work by or on 27th Sept 2013 along with written explanation for this unauthorized absence from duty.

Your faithfully,

Head HR

Regards

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1 Replies

Kumar Doab (FIN) 26 September 2013

Apparently the HR Head and other officials of the company are preparing their own ground to level charges of misconduct and terminate. At times HR guys conceive strange reasons for their actions as employees do not level criminal charges and no one is put behind bars. The matter ends as civil matter and termination order is revoked.

In your case HR might have conceived your case as ‘Beneficial Termination’ to deter other employees……………………………..Other employees may get terrified and become 100% compliant.

You seem to have record enough to establish the falsification of record by company.

To avoid issuance of termination order and then getting it revoked you may think upon the option of proceeding now and seek opinion from your lawyer.

The legal notice from your lawyer and notice by Labor Officials may be a suitable option.

Your lawyer may opine that the proceedings can be termed malicious, defaming, and intention as malafide.

However let the opinion of the lawyer that has seen all of your docs be final on it.

You may demand that all communications, forms, formats, certificates, letters, payments (by bank DD only) etc be supplied to you by redg. post only. You may mention that postage prepaid self addressed envelope is attached or can be supplied by you if company demands it in writing.

Paid/Annual Leave: Paid Leave is guided by the enactments applicable to the company e.g; Shops and Commercial Establishments Act of the state. Company can frame its leave policy providing better/superior/ over and above benefits as compared to enactments applicable to it.

You may go thru :

ANDHRA PRADESH SHOPS AND ESTABLISHMENTS ACT, 1988 (which is so employee friendly)

CHAPTER VII: Leave and holidays with wages and Insurance Scheme for Employees

30. Leave :- (1)……………., 31,32, 33, 34…………………

{And leave policy of the company. ( if you do not have copy of the leave policy demand a certified copy).}

CHAPTER VIII: Wages, Conditions for termination of services appeals, Suspension and terminal benefits

47, 48, 49………………

{There are provisions for compensation to employee. The employer has to supply copy of the termination order to Labor officials within 3 days.}

CHAPTER X
Appointment, powers and duties of the Chief Inspector and Inspectors

CHAPTER XII
Miscellaneous

The Inspector can check and call for records, files in his office and you can in turn obtain from officials.

Company shall encash the annual leave (paid leave/EL) in FNF statement/settlement.

Company may adjust notice pay in FNF statement.

As the Labor Officials have guided you that notice period is one month therefore more than 1 month may be declared void by Labor Officials. Thus company may not be able to recover notice pay above 1 month.

You have already served more than 1 month of notice period.

Hence company shall have to pay the wages for each day you have worked.

One month of the notice period is sufficient for the employer to put his house in order.

It is job of officials of the company to find or designate replacement internal or external.

The charge is usually handed over to HOD.

You may vehemently deny that you are on unauthorized leave, have absented/abstained or absconded.

You must emphasize that you have tendered notice of resignation, extended it on request and left with proper notice of resignation and final resignation by keeping one and everyone including this Head-HR properly informed.

You may point out that no one in the company including this Head-HR should falsify the record and make false statements just to make an allegation and show malafide intent to harm your reputation, candidature, employability.

You must request to allow to examine your personnel file maintained by the company, containing all notes, notings, insertions…………………and seek an appointment. If you are visiting the company on dated………………………you may set this as appointment to examine your personnel file.

It shall be appropriate to keep a witness (say a colleague/ trade union leader) with you and record all transactions.

There is no need to mention that you are employed elsewhere.

Form 16: You may lodge compliant with Labor Officials and also Inspector-TDS where you file your IT return and also jurisdictional CIT-TDS where company files its return.

There are provisions for penalty if the dedcutor (employer) in your case does not supply the form 16.

Bonus: If you are referring to statutory Bonus it has to be paid before 30^th Nov to avoid penalty and punishment. Raise your demand to company and Labor Officials.

Salary Increment Letter: If incremental in salary has been paid the company has no other option than to supply this letter. You may find a copy in your personnel file also.

Attached File : 355112308 ap se act.doc downloaded: 130 times