Relieving letter withheld
ckanta
(Querist) 07 April 2014
This query is : Resolved
Hi everyone,
Here I would like to take your attention on Relieving Letter. I have resigned from my existing company which is one of the best BPO in gurgaon and I am serving 30 days of notice period. As per my Offer Letter 3 months of Notice is applicable or salary for the equal amount need to deduct in F&F however it is at the discretion of the company to accept the buy out option.
After my resignation, my reporting boss and Top management pushing me to serve 90 days of Notice instead of 30 days. I have requested him at my best. I am agree on the deduction part but still he is pushing me to serve 90 days of notice. I already had discussion with HR but he said he wont do anything if my manager is not ready.New employer does not allow me more than 30 days of time.
Could you please suggest me for happy and legal exit, process, method or action which I have to take during my 30 days of Notice so that I can save my new Job.
Please tell the rule or way so that I would be able to get the relieving with in 30 days notice period.
Looking forward for your support
T. Kalaiselvan, Advocate
(Expert) 08 April 2014
Explain the facts to the new employer and convince him to appoint you without a relieving letter, if he is not inclined to do so, you have no other option that to approach the present employer's top brass directly with your request.
Dr J C Vashista
(Expert) 08 April 2014
When there is specific agreement of 90 days notice or salary in lieu thereof in the terms and conditions of your employment, what is the obstacle in relieving? Both employee and employer are bound by the terms and conditions of the agreement.
Meanwhile, request new employer either to allow 90 days joining or not to insist upon relieving letter.
ajay sethi
(Expert) 08 April 2014
as per appointment letter you are require to give 90 days notice . it is at discretion of management to accept the buy out option since management is refusing to accept buy out option serve 90 notice period
T. Kalaiselvan, Advocate
(Expert) 08 April 2014
As opined by the above experts, if you have no other option,better to serve the 90 days notice period and in the meantime you may apply to the new employer to defer your appointment by so many number of days explaining the practical difficulties you are facing, you have chances to get orders in your favor.
Kumar Doab
(Expert) 10 April 2014
It is felt that you have already resigned.
Agreed with Mr. Kalaiselvan, Dr.Vashista!
Let us look at the matter from another perspective.
There are unlimited and uncountable numbers of threads with similar queries.
This forum is visited by Managers/HR personnel, employers too. You may browse thru the threads in Experts and Forum section, and you shall find that they seem to confess that days of Sahookari/Rowdiness/Bonded labor are over and they are looking for opinions so that they are able to align with need of the hour. There are employees who successfully pull bosses and reform them into law abiding citizens ……………………
You must understand the finer points and be properly informed otherwise the Bosses, Managers, Employers shall continue to litter nuisance and you shall always remain on your edges.
What was your designation and nature of duties?
It is felt that State of Haryana has not Granted any blanket exemption from standing orders to companies in your trade and that standing orders are being certified too. However you may check with HR consultants/Labor Consultants/Service lawyers in Gurgaon/Haryana.
There are enough publications for employees of your trade and you may find some publications relevant and useful e.g;
http://www.amrc.org.hk/text/node/1088
http://bpo.knowledgehills.com/Directory/BPO-Jobs/CBPOP-Centre-for-BPO-Professionals.aspx
They are uniting BPO employees. Trade Unions are more than willing to embrace them.
Courts of law have decided that BPO/Call Centre are covered by Shops and Commercial Establishments Act:
http://lawshastra.blogspot.in/2012_09_01_archive.html
http://www.indiankanoon.org/doc/147071732/
1. You have signed the acceptance of T&C drafted by your employer/company without any objection, discussion and negotiation. Probably you have signed without going thru it carefully and without showing it to elders in the family, competent and experienced well wishers, employee’s union leaders, lawyer/law firm…………………………etc. Probably the HR personnel/Managers in your company did not allowed you sufficient time to go thru it, and take it home to show it……………..You have full right to consult and show it. Even if you have signed the acceptance of T&C the service conditions that are inconsistent with standing orders (Model/Certified) shall not operate. Standing orders, (Name of your state) Shops and Commercial Establishments Act, labor laws are applicable to your trade (IT/ITeS/BPO/KPO companies) and notice period/pay in lieu of notice period is stated in these enactments.
These companies and their promoters are subordinate to rule of law and the law of land is applicable to them. They thrive on the fear psychosis of ill informed and non united employees.
If standing orders are applicable to the establishment and extended to your designation then if standing orders are not certified, Model Standing orders shall apply.
As per Model Standing Orders (Sec;13,16, 17, 18) Notice period/pay is applicable BUT during probation period it is NIL and after confirmation 1 month only and service certificate has to be supplied to all employees. Employer shall PERSONNLAY BE HELD RESPONSIBLE FOR FAITHFUL OBSERVANCE OF STANDING ORDERS AND CAN BE PENALIZED FOR VIOLATION,AND STANING ORDERS APPLICABLE TO THE ESTABSLISHMENT HAVE TO BE DISPLAYED AT A CONSPICIOUS PLCAE IN OFFICE……………..
If standing orders are applicable and if employer has inserted service conditions contrary to the standing orders then that part of the contract shall be VOID.
The employer on his should remove/amend such portion and ensure it is in line with provisions of law………………………….
Model Standing Orders have statutory force, Certified Standing Orders is instrument of law and no private agreement signed by employer with employee can supersede a Statue and Instrument of Law………………Violation is an offence…………………….
You may go thru :Model Standing Orders, The Industrial Employment (Standing Orders) Central Rules, 1946…………………
The Industrial Disputes Act, 1947: CHAPTER II:AUTHORITIES UNDER THIS ACT: 3. Works Committee.
Haryana follows Punjab Shops and Commercial Establishments Act.
As per Sec:“23. NOTICE BY EMPLOYEE.-
(1) No employee, who has been in the service of the employer continuously for a period of three months, shall terminate his employment unless he has given to his employer 53[thirty] days’
previous notice or pay in lieu thereof.
(2) Where an employee contravenes the provisions of sub-section (1), his employer may forfeit his unpaid wages for a period not exceeding 1 [ thirty ], days.”
Hence if you are covered as per def. of ‘Employee’ as in this Act {Sec;2(vi)}you can refer to this clause.
In another thread employee has posted that Chief Inspector of Shops and Commercial Establishments Act declared that notice period/pay as per the Act shall prevail upon notice period/pay inserted by employer in appointment letterl………………….
It is to be seen by employee, employee’s unions, trade unions Works Committees formed as explained in ID Act, Lawful Authorities that how come and how dare this or any other employer to whom standing orders and enactments are applicable has inserted service conditions that are not applicable.
30 days by all counts is more than enough for the employer including his HR personnel, Manager to put his house in order.
You are unnecessarily being made to dribble between HR and Boss. They are just another employee like you and do not have any power to accept resignation/reject resignation…………….The drama is being enacted to keep you remained entangled with them.
They are pushed in the front that so that in the end they shall be someone to face internal action by employer and employer himself has an escape route and someone to blame!
YOU MUST put up the matter to appointing authority, MD…………………in writing under proper acknowledgment, and narrate all representations made so far mentioning names, dates, brief minutes of discussion and must write that NO TASKS are pending at your end, routine duties be assigned till expiry of notice period tendered by you, that can be completed on day to day basis, and to whom you should handover the charge against acknowledgment on the spot?
All these enactments are available at the website of Dept. of labor of Haryana.
The state of Haryana, Punjab has Employees unions, Trade Unions that have ferociously defended their rights and have been formidable. Even in private sector they have a job security and they deliver high degree of performance too……………..e.g. in Pharma Sector at the same time they succeed in defending their rights too……………………..Look at the revenues generated by them and the growth fetched by them.
It is a matter of utter surprise that employees of your trade are not uniting.
Whereas Trade Unions and IT/ITeS/BPO/KPO sector employees in other states e.g. Karnataka, Kerala, AP etc have united and are having regular meetings………………………..and are doing a good job too.
All of these trade unions operate in Haryana too and are ore than willing to embrace employees of your trade……………………
For your long term interest always keep access to a lawyer, and unions.
Service conditions are negotiated between representatives of employees, employees unions, trade unions, representative of employer and overseen by certifying officer (which might be DLC in O/o Labor Commissioner.
2. The contract of employment should promote equitable discretion for both employer and employee and if it does not it can be easily termed arbitrary. Does it state that if employer initiates termination then it too has to essentially give 3 month’s notice of termination and it is employee’s discretion to accept notice pay in lieu of notice pay or not? Hence employer shall have to have employee’s permission if employer wants to effect termination with immediate effect by tendering notice pay?
The condition is unfair to you and to your disadvantage as next employer wants you to join within 1 month and you shall loose this opportunity if you do not join in 1 month.
3. You have accepted the condition of joining within 1 month from next employer and this is once again to your disadvantage. You should have explained during interview preferably in writing that your current notice period is 3 months and current employer is unwilling to relieve you in 1 month and next employer should allow 3 months to join.
You could have negotiated: to compensate you for 2months notice pay, to allow you to join on the strength of copy of resignation, POD only…………………….and stand by you if current employer does not issue relieving letter…………………….FNF settlement/statement, acceptance of resignation……………….
The moment you have submitted resignation you have ended the employer/employee relationship.
4. Reliving letter signifies that nothing is due at the end of employee. If employee has offered to handover the charge/company property, has completed duty for the day(s) has completed the tasks then there is nothing due at the end of employee. IN such a case Employer must not sit over it and issue it on its own without any tantrums. If this is blocked to intimidate, coerce, pressurize, force, harass, blackmail, defame, the employee and /or to adversely affect the employability, future prospects of employee then employee can approach:
Unions: They know the precise ways to handle such situation and are known to resolve such situations amicably and tactfully…………..e.g; http://www.itecentre.co.in/
http://ithiworld.wikispaces.com/News+Update
IT/BPO Voice of India | Facebook
UNITES Professionals
www.unitespro.org
http://www.wbitsa.org/
www.itpfindia.org/
http://itnitesunion.wordpress.com/author/itnitesunion/
Shiv Mahiti Ani Tantradyan Sena(Shiv IT SENA)
mankar.janardan@gmail.com
________________________________________
http://www.shivsena.org
http://www.amrc.org.hk/node/1088 CBPOP
http://www.freepatentsonline.com/article/Indian-Journal-Industrial-Relations/185430721.html
http://bpo.knowledgehills.com/Directory/BPO-Jobs/CBPOP-Centre-for-BPO-Professionals.aspx
http://www.dnaindia.com/mumbai/report-shiv-sena-forms-first-union-in-information-technology-sector-1465435
Lawyer/Law firm; Lawyers are skilled in arbitration, mediation, conciliation and there are threads to suggest at LCI too that Lawyer of the employee has resolve the matter of employee without litigation and just by engaging the bosses/employer in discussions…………..The advantage would be that bosses shall not resort to rowdiness and tricks like declaring you ‘ABSCONDER’ etc………………..and you shall be able to exit without any blot on you.
Lawful authority e.g; Inspector under Shops and Commercial Establishments Act, O/o Labor Commissioner, Court of Law
RISE AND DEFEND YOUR RIGHTS.COME BACK TO DISCUSS ISSUES THAT YOU IGHT BE FACING.
