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asingh (abc)     02 December 2014

Separation without serving notice period

All,

I joined an IT services company in July 2014. Although it was not stated anywhere in writing, it was verbally communicated to me as a long term onsite position by the manager and the HR during all my interviews and subsequently till I joined. The employer did transfer my visa legally(which I got from my previous employer) but also communicated to me that there are no onsite opportunities for which they can send me for at least the next 6 months(I have already been employed by them for the last 5 months+). The few opportunities that have come up since I joined, they have hired contractors at the onsite location. I have virtually been on bench for the last 5 months+ and have gotten highly frustrated with my employer and have lost the will to go to work. I feel cheated because had I known that they had no onsite projects, I would not have joined this company.

I now have a job offer from a Company that can utilize my visa(This company is not in India). They have already started the proceedings and expect to have me join as soon as the visa comes through(ETA: Mid Dec). I have not informed my new employer about my current employer as I don't require a service certificate for the past 6 months.

Please help me with the legal implications of the following:

1) The current employer has a notice period of two months. An employee can pay salary in lieu of Notice only at the management's discretion. I would be willing to buy out the notice period as well as pay them back for their expenditure on the visa but cannot serve the notice period of 2 months
2) I also have 12 days of earned leave as balance
3) I have a laptop belonging to my employer as well as ID/Access cards
4) I don't need a service/relieving letter to give to my future employer but I do not wish to create bad terms with my current employer even though I do not want to ever be re-hired here due to my experience.

Please Advice.

Regards,
A. Singh



Learning

 1 Replies

Kumar Doab (FIN)     02 December 2014

1. Build some written and favorable record by writing to good offices of appointing authority/MD about the allurements e.g. onsite etc and that you have been rather made to be on bench (without work or whatever it means in clear terms) and that the purpose to do work related to your qualification/experience/ambition and purpose of joining the company as allured is not achieved and you are getting.......................say rusted.....

 No work/project that was advertised to you has been allotted to you and that the fact is that no such work is available with the company and because of it you may lack........in say competitive technical field........ 

You must highlight that NO TASKS are pending at your end and your conduct and contributions have very well been appreciated by your managers (get some in printed version too)...

 

2. If refund of VISA fee is not part of agreement then you don't have to refund the fee.

 

3.Notice period of 60 days may not be neccessarily applicable in your case.

Notice period/pay is part of service conditions that are governed by various enactments applicable to the establishment ::::::and IT companies are governed by it................e.g.standing orders (certified/model........................if standing orders are not certified then model standing orders shall apply) , Shops and commercial Establishments Act that was enacted to govern the service conditions of employees working in such establishments..............

 

Model Standing Orders::The notice period/pay in probation period is NIL and after confirmation period 30 days......and service certificate has to be issued to all employees....

Shops and Commercial Establishments Act ::: It is as per length of service period and max.30 days as per length of service...

 

These being instrument of law/statue/enactment shall prevail upon any private agreement that employer has signed with employee e.g. appointment letter/contract of employment.....

 

4. You should not conceal anything including current employment from your future employers and in VISA APPLICATION TOO.

5.You must obtain all docs from current employer e.g. acknowledged and accepted copy of notice of resignation, acceptance of resignation,service certificate,relieving letter (with good comments), salary slips of all months preferably bearing digital/original stamp,FnF statement in original,PF number with a/c slips,ESIC card,Form16,NOC/NDC,acknowledgment of handover of charge and company property,............etc

6.You should return all company assets under proper acknowledgment on the spot.

7. The company has to and shall encash leave, compute Bonus etc in FnF statement that should be sent to you for verification and acceptance.

 

IN case you are unable to handle the matter on your own consult your able Labor Law Consultant/Service Lawyer and proceed further under expert advise of your lawyer.  


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