Employer not giving relieving letter

This query is : Resolved 
 

(Querist)
08 June 2014

I am working in a company X for more than an year. Two weeks back, I got a better opportunity in Company Y and send the notice of resignation through email to my reporting manager. He denied my resignation and tried to convince me to continue in the company X.

After two weeks of discussion, he accepted my resignation but denied to relive in one month even though employment agreement states that notice period is one month.

My manager mentioned that he is not going to relive me from company X till the ongoing project was completed which started one week before my resignation. This project may take 3 months or more to complete and my new company Y may not hold the offer to me that long.

Will I face any legal problems, if I join the new company Y after I completed my one month notice period in company X as per the employment agreement, without the acceptance of resignation and reliving letter for company X?


Dr J C VashistaOnline (Expert)
09 June 2014

As per terms and conditions of your employment you are required to give notice or pay for notice period.
The employer will issue relieving letter otherwise issue legal notice for the same.

elgin matt (Expert)
09 June 2014

Dear arjun,

I will second Mr. Vashista view.

Lawyer SALEEMA KABEEROnline (Expert)
09 June 2014

If your resignation letter is acknowledged by your old company and if you have completed the required notice period i.e. one month there, then need not bother about the acceptance of your resignation.

You can very well join with the new company at your wish. No legal problem will arises against you.

On the other hand, the old company alone has to face the legal consequences for the non issuance of your relieving letter in time, if you initiate any legal proceedings against them.

R.K NandaOnline (Expert)
09 June 2014

agree with experts.

Rajendra K Goyal Online (Expert)
09 June 2014

If you have resigned and have completed one month notice period, you are on legally sound footing. Well advised by the experts, agree to it.

N.J.S.Rajkumar alias narasimhaOnline (Expert)
09 June 2014

Well advised by all the Experts

ajay sethiOnline (Expert)
09 June 2014

agree with experts .

sankar narayanan Online (Expert)
09 June 2014

i do agree with experts

malipeddi jaggaraoOnline (Expert)
09 June 2014

If you served the notice period and if it over, though the does not relieve you, there will not be any problem in ordinary course. The problem may be with the new company. Whether it will allow you to join without proper relieving letter or not to be verified. If they accept, you can opt to join in the company ignoring the relieving formalities with the old company. Utmost, if they call you for a day or two to hand-over the charge, files etc., you can co-operate at that time.

krishna mohanOnline (Expert)
09 June 2014

Explain your problem to your new employer and if they are willing to allow you to join without relieving order now, you may join them. But on your own interest you may inform in writing under ack. about your handing over all documents and assignment in your possession to the identified successor and insist for relieving order to avoid any future claims from your current employer.

Kumar Doab (Expert)
09 June 2014


Some more information may be provided and some more steps be taken.
You need to defend your interest with both current and future employer.
Have you received proper acknowledgment of resignation in writing from current employer?


>>> Notice period/pay is part of service conditions and service conditions are not dependant on T&C inserted in appointment letter/contract of employment drafted by employer and signed with employee…………………………
This stance is true for BOTH EMPLOYER AND EMPLOYEE WHOSOEVER INITIATES CONFLICT, DISPUTE……………………

You should confirm if standing orders are applicable to the establishment and if your designation is covered…………………
If standing orders are not certified but are applicable then Model Standing Orders shall apply.

Standing Orders (certified/model) being instrument of law/statue shall prevail upon any private agreement that employer has signed with employee be it appointment letter/contract of employment or anything else………………………Service conditions inconsistent with standing orders shall not survive.

The employer has to display standing orders at a conspicuous place e.g. Notice Board and also supply a certified copy on demand to employee even if against a nominal cost say Rs.10/-

Employee or anyone can obtain certified copy from certifying officer (CO-DLC) in O/o Labor Commissioner at location of Redg. Office of the company.


Employer himself is held responsible::::PERSONALLY::: for violation of standing orders.

The private/internal policies of employer are not law unto themselves.

Employer and his attorney e.g. HR Personnel are subordinate and servant to the law of land.

The Shops and Commercial Establishment Act was enacted to govern the service conditions of employees working in companies covered by this enactment and notice period/pay is certainly covered in this enactment and there are threads at LCI also affirming that the lawful authority e.g. Chief Inspector (Labor Commissioner) held that notice period/pay stated in Shops and Commercial Establishment Act shall prevail upon T&C inserted in appointment letter………………



Designation alone does not decide if the employee is covered as ‘Workman’ as in ID Act ‘Employee’ as in (Name of the state) Shops and Commercial Establishment Act…………………

Your lawyer may ask you asset of structured questions and opine that you would be covered as ‘Workman’, ‘Employee’ as in these enactments and standing orders shall be applicable or not!

IF YOU ARE NOT COVERED THEN THE SERVICE CONDITIONS MAY BE GOVERNED BY APPOINTMENT LETTER/CONTRACT OF EMPLOYMENT, SERVICE CODES AND REGULATIONS/HR POLICY/SERVICE RULES AND REGULATIONS OF THE ESTABLISHMENT.


>>> It is usually stated in appointment letter/contract of employment that service conditions shall be governed by HR policy/service rules and regulations of the establishment…………..that shall be amended from time to time………

The HR policy/service rules and regulations is rarely supplied along with appointment letter/ contract of employment………………………….
The employee usually signs the acceptance of appointment letter/contract of employment without obtaining/going thru copy of HR policy/service rules and regulations.

HR policy/service rules and regulations and any change in it at any time should be circulated to employee well in time and such policies or any other policy should be kept in knowledge domain of the employee e.g. HR portal, shared portal…………………………………….

Gossip, rumor, hearsay can’t be rules and policies.

Employer should not behave like a street magician and produce things from thin air, all of a sudden.

Employee should also not take chances/leave things to chances and must obtain service rules and regulations in time and must consult before signing on the dotted line.

IT IS THE TIME TO DOWNLOAD ALL SUCH POLICIES AS LATER YOUR ACCESS MAY BE BLOCKED ANY TIME.

If such policies are never circulated then employee should demand an authenticated copy from concerned designated official e.g. HR personnel…………………………..or appointing authority/MD/Chairman/employer etc…………….. in writing of course under proper acknowledgment, with a copy to self, so as to reach him in say next 3 days……………………..


You should make it sure that it is not stated in appointment letter/contract of employment issued to you and in HR policy/service rules and regulations mentioned/referred in appointment letter that in case the employee is engaged in a project at the time of initiation of resignation he shall remain on notice period/shall not be relieved till the completion of project…………………….or he agrees to compensate the financial or other loss that employer may suffer due to non completion of the project.

You may check and confirm that NO SUCH CLAUSE WAS INSERTED IN appointment letter/contract of employment, HR policy/service rules and regulations………………

If such clause is inserted employer shall have a reason to lay its claim.


It is certain that due to internal policies of employer for your manager he shall be blocking exit formalities.



>>> Has your future employer issued you selection letter, offer letter in writing and has it stated in it that you should initiate the process of separation by resignation?

Did you submit employment application and did it contain column “At how much notice you can join”?

Did you fill one month notice?

First of all take your future employer in confidence and inform them that as per clause number………………….in appointment letter dated………………………issued to you the notice period is 1 month or notice pay in lieu of notice can be paid, and that as per offer made to you , you have tendered notice of resignation with notice period of 1 month, and you may apprise them that your manager wants you to stay and help to complete the project that may take 3 months and has even threatened to decline to accept the resignation, issuance of experience certificate, relieving letter.

Therefore the next employer should agree to absorb you on the strength of copy of notice of resignation ALONE submitted by you and final resignation that you shall tender on expiry of notice period i.e on dated…………………………and its POD. I.E ……………. WITHOUT ACKNOWLEDGMENT/ACCEPTANCE OF RESIGNATION, EXPERIENCE CERTIFICATE, RELIEVING LETTER.

Attempt to obtain their concurrence in writing or record (audio/visual) and submit minutes of concurrence given if verbally and mention names, dates, phone numbers etc in minutes………….

Some employers are particular about these documents, and insert these in T&C in offer letter/appointment letter/contract of employment……………………… and won’t allow to join without these……………………………………OR if employee does not submit within stipulated time they may effect termination.

IN future you may need these docs for every purpose………………..e.g. employment, Govt. employment, studies, VISA etc…………………..hence you need to prepare enough record in writing under proper acknowledgment……………………..


>>> Resignation letter should preferably be addressed to appointing authority and submitted by redg. post.
Your manager may not be competent authority to accept/reject resignation however as per internal policies of the company he might have been made a stake holder…………

You may submit copy of the resignation to good offices of appointing authority (MD………) and mention that the notice period as per clause number………………………….in appointment letter dated……………………..issued to you is 30 days and you have tendered 30 days notice period vide notice of resignation dated………………………..and routine duties be assigned to you that can be completed on day to day basis within and up to dated………………………..i.e. expiry of 30 days of notice period……………………and all arrangements be made to complete the exit formalities/KT etc within and upto expiry of notice period tendered by you and to whom you should handover the charge within and upto expiry of notice period i.e dated……………………………

YOU may also mention that acknowledgment and acceptance of notice/resignation, correct FnF statement for verification and acceptance by you, payment of FnF wages by bank DD only, Form16 as per correct FnF statement, PF number a/c slips of each year of employment, ESIC card, service certificate, certified copy of service card, relieving letter, NOC/NDC, …………etc be supplied to you within and upto close of office hours of last date in office i.e dated………….

You must mention and highlight all contributions, achievements, appreciations awards, rewards, performance, revenues generated, incentives issued to you……………….. and no stinker/notice/show cause notice have ever been issued to you……………………………….and you should be relieved with full honors/docs/dues on last day/date in office.

If you are asked to obtain NOC/NDC from any dept. retain the copies and if it is delayed and denied submit in writing to good offices on written record with a copy to you and affirm that you do not owe anything…………………..

Legally the service certificate should be issued to all employees……………………

Relieving letter signifies that nothing is due/pending against employee…………..
It is more of a custom/tradition/practice and initiated by HR/Employers to achieve another handle on employee……………………….
Last salary slip/FnF statement/NOC-NDC/acceptance of resignation and service certificate can serve its purpose.


Since non issuance of relieving letter shall affect you adversely you must get it.


>>> It is time to do everything on written record and defend your interest from both employers in the best possible manner so that there is no adverse effect on you.

>>> IN case of any difficulty that you face don’t hesitate to approach your able lawyer.
Your able lawyer would know how to defend your interest.

Arjun (Querist)
10 June 2014

Thanks for the suggestions. I gave my notice on 27th May. Will end my one month notice period on 26th June with current employer and join my new employer on 27th June.

As my current employer is a startup they are short on employees to complete the project and so they want me to continue till 1-Aug.

I hope my current employer can't take any legal action as I am leaving in the middle of the project.

ajay sethiOnline (Expert)
10 June 2014

you have served one month notice period as provided in your contract . they wont take legal action

Rajendra K Goyal Online (Expert)
10 June 2014

After serving the notice period, they will not be able to take any legal action.

Kumar Doab (Expert)
10 June 2014

It would have been better if you had posted some more information that was asked………..
Nevertheless it is believed that you have gone thru all docs and records and it is in your favor.

The employer can not prepone or postpone the date of resignation tendered by employee.
The employer can only make an APPEAL, REQUEST, to employee so extend the effective of resignation and pledge to make payment of wages till the requested date………………………………….
In such a case the employee has the discretion to accept or reject or agree to the wages or negotiate the remuneration……………………… for extended period……………
The stand of your manager that he shall not relieve you even after service of notice period can be termed Transgression…………..

Although it would be transgression……………………still if he has decidedd, you shall face issues, therefore you should build evidence in your favor, and written record while in notice period, submit reminder(s), submit final resignation too under proper acknowledgment……………......................and firm with next employer too.


Arjun (Querist)
10 June 2014

I am trying to get my current employer to write it in email or company letterhead the following :-
>what is my actual last date according to agreement?
>why they want to extend it?

As of now, even though I wrote two mails to my manager about my resignation and requesting for my last date, he only replied that he doesn't accept my resignation and didn't confirm my last date in the mail. Everything on the not reliving me before August happened orally but not in written.

Kumar Doab (Expert)
10 June 2014

IN your first post you have stated that your Manager has accepted your resignation.

IN your last post you have stated that your Manager has declined to accept the resignation in writing!

Which one is true?

Record the statements of Manager (audio/visual) and submit minutes in writing.



The employee has tendered notice of resignation with notice period of 30 days as per contract of employment.

The employee has initiated separation by resignation; hence employee shall decide the date of separation/last date in office not the employer.

Employee should not ask in writing what would be his last date in office as per internal wish of officials of the company.

If Manager has stated in writing that resignation is not accepted then he must state the reason also and the reason has to have legitimate logic, if any.

Leave apart Manager even employer himself can not bind the employee…………………………………

Bonded Labor has been abolished.

If you have consulted a Labor Consultant/service lawyer in person then your lawyer might have opined that you are covered as ‘Workman’, ‘Employee’ and that you can raise a dispute NOW…………………………..!

Otherwise also the dispute seems to be imminent.

The intent can be any.....................say to affect your next employment by not issuing acceptance of resignation, declaring you absenting,absconding,abstaining in internal record without issuing any communication/notice/show cause notice/legal notice to you....................or to claim that these were issued in office or by ordinary post................leveling charge of misconduct.....................denying proper relieving................issuing adverse feedback in reference check/BGV.........................so that you loose future employment...............or are adversely affected..................



It shall be appropriate if your representations are now drafted by your lawyer if you do not want to issue a legal notice.

The seasoned Labor Consultants/Service lawyers usually draft all communications and employee signs it, so as to build ground and defend the interest of employee……..

Employee can always revert that he does not withdraw notice of resignation dated……………………..tendered in line with T&C of appointment letter/contract of employment issued to him.

Is your Manager owner of the establishment, appointing authority, competent official empowered by aboard of the company to accept resignation?

Is he a stake holder in the process as per any published and circulated policy of the company?

Is it stated in contract of employment that resignation should be addressed to Manager or routed thru Manager?

If the Manager is littering nuisance you can escalate to good offices of appointing authority, MD in writing under proper acknowledgment and seek relief.

Don’t remain entangled with Line Manager/HR personnel……………………

What is this establishment: Commercial, Industrial, Small Enterprise?

The registration certificate is displayed near entrance or you may find out yourself.

You and Redg. office of the company is located in which state?

How many employees are employed in it?
What is your designation and nature of duties?


Are you a member of Employees Unions?



Arjun (Querist)
11 June 2014

Kumar Doab-
My resignation accepted orally but not mentioned in written as I specified in my I specified in my previous post.

My Company has less than 20 employee in India currently.

I discussed about my resignation partner level along with my manager and they are not willing to relive me before August.

I asked for them to state the reasons for not reliving me in written but they are not responding to my mails.

Kumar Doab (Expert)
11 June 2014

Arjun,

You have not specified in any of your posts that your resignation was accepted verbally.

Nevertheless if you want you can state in your representations that on dated............Mr/Ms...............in office accepted your resignation verbally, during meeting.


Sufficient has been discussed in this thread and it covers all points raised by you.

In case of issues you can approach your able lawyer and proceed under expert guidance of your lawyer.

Raj Kumar MakkadOnline (Expert)
11 June 2014

Well advised by experts leaving no room to enter.

T. Kalaiselvan, Advocate Online (Expert)
12 June 2014

Very properly addressed by all experts, nothing more to add.

Arjun (Querist)
13 June 2014

Thanks for all the suggestions.

Raj Kumar MakkadOnline (Expert)
13 June 2014

Most welcome from your side Arjun.



You need to be the querist or approved LAWyersclub expert to take part in this query .


Click here to login now



Similar Resolved Queries :









×

Menu

Post a Suggestion for LCI Team
Post a Legal Query
CrPC Course!     |    x