Mr. AAK has given valuable advice. Kindly follow it.
Such matters are best resolved by applying rapport, goodwill, exceptional levels of reasoning, negotiation, persuasion, persistence skills……………
This is the time employee should favorable and written record too……………….
It seems that company and its HR shall sit on proper relieving.
The employee should inform next employer preferably in writing that the current employer may not issue acceptance of resignation/relieving letter/work experience-service certificate therefore the next employer should appoint/absorb on the strength of copy of resignation and its POD.
You have posted that:
--------“even though there are no pending tasks from my side. “
This is an imp. Statement which employee should make in writing on record, and so that the employer does not claim loss.
Employee may also state that as on date all tasks are completed and routine duties be assigned which can be completed within and up to effective date of resignation (thus date of retirement chosen by employee) and he should be informed on the designated replacement and handover/training etc if any to be performed within and up to last day in office…………….
Employee should also highlight that he has rendered, exemplary/unblemished/satisfactory services so that line managers/HR do not act to post comments to malign in personnel file and in future.
--------“but he said he won’t allow me to buy the short fall period because policies are changed now but there is no mail and agreement signed by me for these new policies.”
HR is not employer. He/she is another employee in the company. Until or unless empowered by the board he/she can not accept or decline to accept resignation.
He/she is to observe the policies and rules downloaded to him/her by his/her superior offices.
Most probably his statement is in line with ‘Employers” policy downloaded to him/her, hence he/she is adamant.
As noted from various threads IT companies have become adamant on notice period etc and if the employee is not 100% compliant relieving letter are not to be given as per some internal ‘Employers ‘ policy of the company.
This could be the reason for statement of HR in your case.
The resignation should be preferably addressed and supplied to the good offices of the appointing authority, MD, Chairman (preferably by redg. post) or escalation be preferably addressed and supplied to the good offices of the appointing authority, MD, Chairman Company Secretary…………………….The good offices of the company can grant the waiver…………..
--------Clause 19, 20, 21,
The contract of employment should promote equitable discretion.
The contract drafted/crafted by employer in your case does not seem to promote equitable discretion.
It is stated “however company reserves the right to pay basic salary in lieu of notice period, and terminate the contract with immediate effect.’
This seems to be in violation of the judgment(s) delivered by apex court e.g; resignation can not be accepted before effective date of resignation tendered by employee:
Supreme Court of India:
Nand Keshwar Prasad vs Indian Farmers Fertilizers ... on 1 April, 1998
(https://www.indiankanoon.org/doc/1452145/)
11. After giving our careful consideration to the facts and circumstances of the case, it appears to us that the law is well settled by this Court in a number of decisions that unless controlled by condition of service or the statutory provisions, the retirement mentioned in the letter of resignation must take effect from the date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date when the employee concerned did not intend to retire from such earlier date. It has also been held by this Court that it is open to the employee concerned to withdraw letter of resignation before the same becomes effective.
The company should not reserve rights to it which can affect the future of the employee, violate the rights of the employee to seek better source of livelihood/career and progress in life.
Resignation can be without notice or permission. In contract a party which breaches the contract has to compensate the other party. The compensation/liquidated damages has been inserted in appointment letter in the form of notice pay.
There is an option of sending the cheque for notice pay towards shortfall in notice period along with notice of resignation and acknowledgment of notice and cheque may be demanded and obtained. The good offices of the company shall either accept or decline. Let them state so in writing and thereafter you may proceed accordingly.
Reliving letter is issued post all settlements by employee and signifies nothing is due against the employee and the employee has been properly relieved. Employee should properly resign under proper acknowledgment; ask for acknowledgment immediate effect and ask the good offices to whom handover the charge, company property, be made under proper acknowledgment on the spot……………
If employee has complied to all demand made then he has completed his contractual liability and now company should not sit on relieving letter, and supply it along with acceptance of resignation, work experience/service certificate, correct FNF statement, payment of FNF dues, Form 16 as per correct FNF statement, last salary slip and for all month’s of employment, PF number/account slips for entire period of service/attested copies of PF withdrawal or transfer forms, NOC/NDC etc………………………
If FNF statement is wrong employee may decline to accept it in writing.
HR/Line manager are not employer. If these personnel are stepping on the toes, then employee may escalate to god offices of appointing authority, MD, Chairman, company secretary……………….
It is felt that during employment no adverse comments on conduct etc has been posted to you and no stinker, memo, show cause notice etc was ever issued to you………………….
-------And clause; 30: have you registered with NSR of NASSCHOM?
In addition to BGV, reference check, adverse comments in personnel file, and to third parties, this is another concern you may have.
While the registration with employment exchange may have lawful sanctity: why registration with a private body is made mandatory for employment?
The company might have the right to post comments on your profile registered with NSR.
There have been threads hinting blacklisting or veiled blacklisting of employees who are not 100% compliant to the policies of the employer.
The founder of union for IT employees has posted comments:
https://itnitesunion.wordpress.com/2010/06/23/in-nsr-can-a-employee-be-black-listed-i-am-asking-this-as-some-employers-have-said-this-to-employees/
In NSR can a employee be black listed, I am asking this as some employers have said this to employees!
You may find the attachment as useful.
-------The IT companies are covered by Shops and Establishments Act (SE Act).
The notice period as per Andhra Pradesh Shops and Establishments Act Section 47: is 15-30 days.
The higher notice period is obviously for the benefit of employer.
Isn’t it that a higher notice period be termed void as per the Act.
-------You may also check if Industrial Employment Standing Orders Act (IESO Act) is applicable to your industry/company and if the company has its certified standing orders (CSO) and extended to your designation.
Some states like Karnataka has granted blanket exemption to IT/ITeS companies from the provisions of IESO Act and later this was ended.
You may check if the state of AP had granted at all such exemption from standing orders (SO).
And if later such exemption was ended.
If CSO exists then you may obtain a copy from employer and if employer does not provide from certifying Officer (CO; which may be DLC in o/o labor commissioner).
If CSO does not exist but IESO Act is applicable Model Standing Orders shall apply.
The service conditions stated in SO can not be negated to employee in appointment letter.
If notice period stated in standing orders is 1 month it can not be 3 months in appointment letter.
Designation alone does not decide employee is a ‘Workman’ as in ID act and ‘Employee’ as in SE Act.
Your lawyer may ask you a set of structured questions and may opine that you are covered by these enactments.
Model Standing Orders:
13. Termination of employment.--(1) For terminating employment of a permanent workmen, notice in writing shall be given either by the employer or the workmen - one month’s notice in the case of monthly-rated workmen……………………
(3) Where the employment of any workmen is terminated, the wages earned by him and other dues, if any, shall be paid before the expiry of the second working day from the day on which his employment is terminated.
16. Certificate on termination of service.--Every permanent workman shall be entitled to a service certificate at the time of his dismissal, discharge or retirement from service.
NOTE. - There is a provision under this Act for issuing a service certificate at the time of dismissal, discharge or retirement and every person is entitled to take such certificate.
---------Many of forums/unions/groups were formed in AP, Karnataka by IT employees.
These unions may be in a position to intervene and help you.
There is an urgent need to form strong unions/trade unions by IT employees to defend their interest and rights.
You may proceed as deemed fit at your end.
https://www.rediff.com/money/2007/feb/01ites.htm
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