Company not giving relieving letter and not doing fnf settlement

Pankaj kumar (Querist) 30 November 2013 This query is : Resolved
Hello Lawyers club experts,

I was working in a software company from 3 years with 100+ employee in Noida. The company is registered in Delhi.

I had given proper resignation through email to my reporting manager cc hr department without specifying my last date of working. They have accepted my resignation and had given the last working date which is 2 calendar months (as mentioned in appointment letter and is not buyable) from the resignation date. I requested my reporting manage to reduce my notice period to 45 days instead of 60 days through chat as well as verbally and was also ready to pay the balance notice period. But he was not ready to reduce my notice period. Then I mailed to HR, senior manager and even to CEO for discussing the same but no one helped me and not reduced the notice period. I also told them verbally that I have to join another company in 45 days and I can't decline this offer due to family liabilities.
After 45 days I stopped going to the company and joined the another one shooting a mail to hr and reporting manager of my previous company that I am quitting the job from today and will be unable to come to office. I also submitted the company's I card to HR Department.

After that I got a mail from HR from the previous company that they will treat me as absconding and will take appropriate action against me if I do not complete my remaining notice period.
I again replied the HR with my inability to complete the notice period and even told them that I am ready to support my team on phone as well going to office whenever required. Although I had no remaining work as such in my hand. I had also given KT to one of my colleague.
After that I have not got a single response from their side and even they are not picking the phone.

Now it is going to be more than one month still, I have not got my relieving letter as well as FnF settlement beside many attempts to contact HR.I also remind them the same through email.

The wordings of "SEPARATION" in my Appointment letter is as such.

"After confirmation, the employment with the company can be served by either party with a separation notice of minimum two calendar months. It will be management's prerogative to decide on the relieving date based on its business requirement, and decision of the management shall be final and binding on you. While on notice period, any leave availed shall not form part of the notice period served, accordingly the date of relieving shall be further extended by such number of days. Salary calculated on the balance number of days notice period shall become payable/recoverable. Any documents/materials belonging to the company must be returned to obtain final clearance."

Recently there were many employees that were released earlier then the notice period. Even One guy was also released before completing notice period who was working on the same project as I. But GOD knows what happened to me they do not released me early.

I have copies of all conversation on emails that were done during that time.

I request the lawyers club experts to kindly guide me in this regard.

Thanks in advance....

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Kumar Doab (Expert) 30 November 2013

It is felt from your post that you have merits and without any hesitation you may approach your labor consultant/service lawyer.

The hands of the bosses and HR may be tied with policy of the employer applicable to them.

They may not think out of the box till you stir or shake them.
The legal notice by your able lawyer may help to drill sense into the heads.
Your lawyer shall put all your communications, record, inputs in order ands sequence and conclude that you have not absconded and you have properly resigned and have been relieved too.

Abscondment is misconduct. Your lawyer should be able to get you rid of this charge and get you clear and clean and proper relieving.

The email of HR to treat you as absconding may turn out be an act of intimidation, coercion and clear threat of vindictive and zealous mindset intended to cause harm.

You should demand acknowledgment of notice of resignation, final resignation, acceptance of resignation, to withdraw unconditionally the email threatening to treat and level false charge of absconding, and issue FNF statement, FNF dues by bank DD, PF number/account slips for whole tenure of employment, ESIC card, salary slips for whole tenure of employment, NOC/NDC, service certificate, Relieving letter, receipt of having handed over the charge, KT etc................... by redg. post only.
You may also narrate all representations by chat, emails, phone calls, fax, letter, and also list of phone calls as I your phone which were not attended.

>> The first and foremost suggestion is that notice of resignation and subsequent communications should be carefully structured to suit the long term interest of the employee and today’s scenario employee should always consult elders in the family, competent and experienced well wishers, lawyer/law firm before acting on his own.

This shall avoid legal traps and inconvenience.

Employee should always address the notice of resignation/resignation and subsequent communications to good offices of appointing authority, MD .................and must state the date of retirement (effective date of resignation/ notice period-expiry of notice period/ last day in office) in notice of resignation whatever be the statements inserted by employer in appointment letter.

If good offices want let them state in writing that employee should write to.............................Mr/Ms............................or let good offices route the representations of employee to whosoever they wish to.

Employee must always demand certified copy of standing orders {certified (CSO) /Model) applicable to the establishment and extended to the designation of the employee, service rules, HR policy, service codes and regulations, exit and severance policy and any other policy that is in force in company and applicable to the employee.

Employee is bound and under obligation to display standing orders at a conspicuous location in company/notice board, and supply the certified copy to the employee against a nominal fee say Rs.10/-.

Employee or any one can obtain the certified copy of the standing orders applicable to the establishment from certifying officer (CO) against a set fee say Rs.3/page. The Certifying Officer may be DLC in o/o Labor Commissioner at the location of redg. office of the company.

The service conditions stated in standing orders shall prevail upon appointment letter or any other private agreement that employer signs with employee. If notice period stated in standing orders is 1 month it can not be 2 months in appointment letter. Employer himself is responsible for faithful observance of standing orders.

Standing orders and rules that are statutory and have statutory force.

The Model Standing Orders are as per statue and have statutory force and shall prevail upon any private agreement that employer signs with employee be it appointment letter...................or contract of employment.......................or service agreement........................or Bond....................or whatever it is.

Once the standing orders framed by employer are certified they have the force of law. As against them conditions of service contained in appointment letter or contract of employment do not have statutory force.

Once there is a conflict between the provision of law or an instrument having force of law and the contract entered into between the parties, the former will prevail.

>>Your establishment has 100+ employees and standing orders should be applicable.
If standing orders are not certified Mode Standing Orders shall apply.

For the application of standing orders an establishment may not necessarily be factory alone.

To the best of our understanding State of Delhi or UP has not granted any exemption to IT/ITeS/software companies any exemption from the provisions of Industrial Employment Standing Orders Act.

If any exemption is granted by notification to this effect the same may kindly be provided for the benefit of one and all.
The software companies are covered by Shops and Commercial Establishments Act and notice period stated in this enactment of UP/Delhi is 1 month.

>> If the tasks of the employee that has initiated resignation are unfinished due to which employer may suffer financial or some other loss and the employee is unwilling to indemnify the employer then the employer may impress upon the employee to serve full notice period.

The purpose of notice is to allow the other party (employer) to make arrangements to complete exit formalities and handover of charge. 45 days by all counts is enough and sufficient for employer to put his house in order.

You did not leave any unfinished task, have completed KT, have handed over the company’s property and have thus completed exit formalities and have also affirmed to tender notice pay.
Although it is not clear that notice period of 60 days is in fact applicable in your case or not?????

If notice pay in lieu of notice period is stated in appointment letter then it is the max. liquidated damages that employee may have to tender. IN your case notice pay in lieu of notice period is inserted in portion of the appointment letter reproduced by you in your post.

You need to vehemently deny the charge of abscondment and demand your dues: payment and documents.

Approach your lawyer.
The lawyer that has seen all of your docs and has analyzed your inputs can advice you the best and also the forum in which you can agitate.

Pankaj kumar (Querist) 30 November 2013
Thanks a lot sir for your early response I will do the same as suggested by you. I am sure this will help me a lot. Your reply has increased my confidence level. Thanks again.......