Joining without relieving letter from previous company
ashokkumar
(Querist) 16 May 2014
This query is : Resolved
Hi,
My employer accepted my resignation and relieved me on 14th April 2014, but my employer not providing Relieving letter and experience letter.
Its almost 32 days and waiting for my relieving letter. Now I got new job and they asked me to join on 20th May.
If I join in the new company without Relieving letter from previous company, whether my previous employer can act against me?
Atlas Eva
(Expert) 16 May 2014
do you have any documentary evidence to prove that u have resigned ?
if not then send resignation by registered post, also first request the employer to issue to u a relieving letter and exp letter and second time threaten him that u will take matter with labour commissioner if he doesnt issues the same.
Dr J C Vashista
(Expert) 17 May 2014
Once releaving letter is accepted by previous employer, it is formal to issue relieving letter, contact personally failing which send a written application, even then if not received issue legal notice followed by a mandatory suit.
ashokkumar
(Querist) 17 May 2014
I have resignation acceptance mail. Through mail they asked me to come and collect the letter, Once I directly visited my employer they are saying that concern person is not available
This is happening regularly. Whether joining without getting relieving letter will cause issue legally?
Guest
(Expert) 17 May 2014
If your resignation acceptance mail indicates the date of effect from which your resignation has been accepted, you can join a new organisation without any hitch. You can collect the relieving letter any time from the employer or even may ask for sending to your address by courier. However, you must inform in writing the employer about dates of your visit to collect the relieving letter with the reason quoted by them for not delivering the same to you each time.
Advocate. Arunagiri
(Expert) 17 May 2014
You have stated that the employer relieved you on 14th.. How they relieved you? Is there any letter for that?
Kumar Doab
(Expert) 17 May 2014
Relieving letter signifies nothing is due against employee.
If you have completed all tasks,exit formalities, handover of charge/company prperty,andd have no dues etc then you should get NOC/NDC, service certificate, relieving letter,FnF statement,FnF dues,PF number/ac slips,ESIC card,Form16 etc............ everything...............on last day in office.
If employer has accepted resignation and has relieved you then employer-employee relationship has ended.
Did the employer accept resignation before the expiry of notice period and why do you think that it shall not issue relieving letter?
Narrate all representations made so far to good offices of appointing authority, MD, mention names, dates and conclude that you were called to offcie on dated.................by Mr/Ms...............but on reaching in office on appointed date/time,you were not
handed over the relieving letter and docs....................and payments be sent to your address..................by redg. post.
T. Kalaiselvan, Advocate
(Expert) 17 May 2014
You have been properly advised on the subject issue on another thread of the same subject repeated by you.
Kumar Doab
(Expert) 18 May 2014
You have merits as discussed in other threads initiated by you.
You are not able to resolve the matter on your own.
So far your communications, appeals etc seem to have fallen on deaf ears and probably company has been maintaining a studied silence.The employer has probably understood that you won't either know what to do or won't act if you know.
Hence NO relief to you.
It wants some written communications from you to sign probably to square off your dues (unpaid in Kuwait) and to escape from liabilities.
It is almost certain that Legal cell/Lawyer of the employer has advised him to extract such admissions from you. The lawyer of the employer might have drafted the one for his client and it might have inserted in a file and might be waiting for your signatures.!!!!!
It is a question mark that even if you oblige your employer by signing on the letters drafted by it; would it provide the payouts and documents that are due to you???????????????
It is our hunch: NO!
However you alone being closest to the facts and your employer would know the outcome so far!
A competent and experienced Labor consultant/service lawyer, had you approached one, would have set the ball rolling for you by now.
It is your choice to roam in forums or approach your lawyer!
It is a Repeated Query at:
http://www.lawyersclubindia.com/experts/Employer-not-issuing-experience-relieving-letter-and-salary-dues-467436.asp
http://www.lawyersclubindia.com/experts/Employer-not-issuing-my-experience-relieving-letter-and-salary-dues-467426.asp#.U1SVEFf9GRQ
ashokkumar
(Querist) 20 May 2014
I have discussed this issue with lawyer and they suggested the below options,
1. Proceeding legally may also take 1 years to get those documents, which depend on your employer.
2. If you need the documents earlier to join another next company. Try to get the documents without legal. Even I visited the office once again, now they added another document along with apology letter. The new document for "Declaration saying that I wont join my previous company handling clients for next 3 years".
3. I about to join in new company, but they asked me to submit the relieving letter on joining date. They are ready to give maximum one month grace period to submit the document. But its difficult to provide before that period.
That's the reason I tried to know whether I can join without getting relieving letter. Whether it will have any legal problem.
Guest
(Expert) 20 May 2014
Mr. Ashok,
If you go hanging around your company with your requests, they would not like to see you join another company for furtherance of your career. Probability of risk cannot be denied in any case on one or the other ground, but you will have to take some risk mustering your courage in the interest of your career. otherwise, you should forget to join the new companym if you can't handle the matter effectively.
In fact, your new company should treat official acceptance of your resignation as your relieving letter from the date of effect of your resignation.
Kumar Doab
(Expert) 20 May 2014
>>> In other thread(s) initiated by you, you have posted that Form16A is issued by your employer in India (that deputed you to Kuwait) to you, but the payouts of the wages was not made to you.
The Form16 is issued after disbursement of wages.
Your lawyer/Income Tax lawyer/CA and even local ITO in IT office can advise you further on it.
>>> Since wages are not paid to you, employer owes monies to you and not you.
Since Kuwait partner/associate/client of your employer has extracted your signature on docs for FNF this should imply that nothing (pertaining to handover of charge etc...) was (at Kuwait) and is (at India) pending at your end………………..
You have lodged a complaint also in this regard.
>>> Relieving letter signifies nothing is pending against employee, separation is accepted/executed.
It is issued post all clearances.
After your resignation probably the employer did not ask in writing to do any exit formality etc……………
If yes nothing was due at your end.
This should imply::::::Employer owes monies to you, you don’t owe anything to employer.
So it is you that has the privilege and prerogative to issue ‘Relieving’ to employer and not the vice versa.
It has already been pointed out that service certificate has to be issued to all employees and you can even approach the Inspector, o/o Labor Commissioner to obtain certified copy of your service card.
Model Standing Orders:13-18
By signing apology you would be relieving this VP and employer from the hook, and then this VP and your employer shall be putting you on the hook.
>>> Submit minutes of discussion of all meetings, including demand of signature on agreements after you have retired by resignation and during the period your FnF wages, resolution of complaints, relieving letter was kept un supplied to you and you were being made to visit one and every one in office in routine.
You may note that your employer shall scream that as per some unpublished/unshared/uncirculated/unsupplied STUPID POLICY they need these agreements to signed by exiting employee................
At a later stage you may need the irrefutable evidence. Hence build it, generate it.
Your lawyer may feel that you may lodge a complaint with police, Inspectors under say...............Payment of wages Act, Shops and Commercial Establishments Act, o/o labor Commissioner etc...............under proper acknowledgment with complaint number and let it remain in their files..............
Your lawyer can update you on this too.
Let your lawyer structure your representations.
>>> It is felt that you should first obtain proper FnF statement on prescribed stationary (preferably company’s letterhead with date, seal and signature by hand), instrument of payment (preferably Bank DD and its details duly mentioned in FnF statement). You may sign on the FnF statement in current date only ( obtain its photocopy) and retain the original copy with you.
Once it is in your hands and safely kept there after only you may decide to tender some document that too drafted/structured by your lawyer to suit your long term interest.
If at all your lawyer suggests to write down apology………………………………. for sending email to VP then it should be limited to these many words only adding that you had no other option and you were duty bound also to inform the VP and now the employer has handed over the instrument of payment dated………………..on dated……………in premises (full name of company with address) and retain a copy.
>>> The Indian courts of law have consistently been declining to grant injunction(s) and enforce NON COMPETE CLAUSES/AGREEMENTS for the period after termination of employment.
You may note that the above is for NON COMPETE CLAUSES/AGREEMENTS ONLY!!!!!!!!!!!!!!
We are not aware of any recent court decision that shows change in stance………..
Your lawyer may have details. Ask your lawyer.
You may show the agreement drafted by the company’s lawyer to your lawyer and suggest modifications and negotiate without
submitting anything in writing.
You may not sign until the matter is seen by trained legal eyes of your lawyer and examined verbatim by trained legal mind of your lawyer.
The agreement should be dated in current date…………….
You may record all meetings (audio/visual) and keep witness.
The agreement can establish that it was prepared, drafted long time after the employee submitted resignation and FnF settlement, relieving letter was being delayed and this agreement was signed under duress,…………………….. due to coercion, intimidation…………………..
Other than NON COMPETE CLAUSES/AGREEMENTS YOUR EMPLOYER MIGHT HAVE ADDED ‘NON SOLICITATION’ ‘NON DISCLOSURE’ ‘TRADE SECRETS’ ETC which may have reasonableness and may hold for some reasonable period.
Your lawyer can update you on the civil and criminal liabilities on this.
>>> Is your past employer offering you any compensation for signing this NON COMPETE AGREEMENT or whatever it is, that is suitable and sufficient to let you survive for 3 years?
Hope you are aware of Garden Leaf Clause!!!!
If employee does not work in the trade/field which he/she knows then what else he/she shall do????????
SELL BHAJIYAA!!!!!!!
IF HE/SHE DOES NOT SEEK EMPLOYMENT WITH COMPANIES THAT ARE IN THE TRADE HE/SHE KNOWS THEN WHERE ELSE HE/SHE SHALL SEEK SOURCE OF LIVELIHOOD::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::DHOBI GHAAT?????????????
Your lawyer can update you on this and may structure your representations to cover your interest.
>>> By signing this agreement you would be granting the right to your past employer to claim legal injury……………………issue notices to you, legal notice to you, pull you to court of law………………………..and once the matter is in court of law…………………………..the decision is pleasure of the court of law.
WE all believe that court of law shall decide on the reasonableness of the matter.
Your lawyer can update you on this.
>>> How does past employer know that you are joining a competitor?
It is believed that you have submitted so in writing?
Is it located in India?
OR some other country?
The lines mentioned above pertain to stance of Indian courts of law and not courts of law in any other country.
Hence go thru this part objectively and be sure about of it.
It has also been mentioned that ‘We are not aware of any recent court decision that shows change in stance…………………………of Indian courts of law.’
Your lawyer can update you on this.
>>> The next employer (Competitor) is otherwise going to be benefittd by employing persons from his competitor.
Hence it should support you thoroughly. It should agree (in writing) to absorb you on the strength of copy of resignation letter only. IT may ask you to sign affidavit/indemnity that you are not employed elsewhere.
It should agree to not to terminate you in case your past employer decides to trouble you by sending notices with a copy to your employer.
It is felt that you are fully aware IF YOUR NEXT EMPLOYER HAS SIGNED OR NOT SIGNED ‘NON POACHING AGREEMENT’ WITH YOUR PAST EMPLOYER.
IF YES YOUR PAST EMPLOYER MAY DECIDE TO ISSUE LEGAL NOTICE TO YOUR NEXT EMPLOYER AND YOUR NEXT EMPLOYER MAY DECIDE TO SEPARATE.
>>> You may spend quality time with your lawyer and assess and understand the merits and options, and merits in each option.
It is felt that you would certainly need to retain access to a Lawyer.
IT IS REITERATED THAT EMPLOYEES SHALL CONTINUE TO FACE HARASSMENT UNTIL THEY ARE UNITED AND HAVE UNIONS TO SUPPORT.
THE SERVICE CONDITIONS CAN BE NEGOTIATED THRU EMPLOYEE’S UNIONS, TRADE UNIONS.
IT IS SO EASY TO UNITE!
Kumar Doab
(Expert) 20 May 2014
You have posted that:
>>> "Through mail they asked me to come and collect the letter,"
This is sufficient for smart lawyer and smart trade union leader to deny signature on any agreement.
They can poke 10 holes in 10 minutes.
>>> "Once I directly visited my employer they are saying that concern person is not available. This is happening regularly.
Minute these happenings.
Employee's union leaders, trade union leaders, community leaders, Inspector's under various enactments know precise ways to handle such matters.
>>> "Whether joining without getting relieving letter will cause issue legally?"
If your future employer is standing firmly by your side (getting benefited) why should there be.
You should spend some quality time regularly with leaders of the unions, community...........
