Relieving from my company
abcd
(Querist) 26 December 2014
This query is : Resolved
Hi all,
I am working in a company from last 1 year. I got another good opportunity which I accepted.
With my previous company there is an agreement reagarding minimum years to serve.Since I am leaving my company, I am ready to fulfill that agreement. I need to pay certain amount as compensation.
Now there is no mention of notice period on any of my documents such as joining letter or appointment letter. When I talked to my HR, HR was saying that I need to serve a notice period of 3 months and at the same time they were telling me to stay back saying that they will not accept the compensation.
It was told to me that If I leave, then they will not provide relieving letter as well as experience letter.
They were saying that we do not mention notice period on offer letter,its present on HR web portal.But my point is, notice period must be mentioned on joining letter/offer letter since they can modify the notice period on their HR portal anytime.
In the end, I have submitted my resignation and now waiting for the meeting again.
From my side I am ready to pay compensation.
Please let me know how to tackle this situation.
Kumar Doab
(Expert) 26 December 2014
The HR personnel at times litter nuisance and such personnel are not fit to be left to loose around in a civilized society.
The question arises that:::::WHY EMPLOYEES SUFFER???
It is as simple that employees:::: majority of them do not unite to form unions and do not affiliate with trade unions………………
Are you aware that:
--- ‘Works Committee’ as explained in ID Act is an authority::::::and President is from employees::: and it has to have equal number of members from employees:::: and that the employees can negotiate the service conditions!!!!!!!!!!
---States e.g Karnataka has notified that each company shall form GRC (Grievance Redressal Committee) that will have equal number of employees in it.
One should participate in activities and be member of unions from the student days and be properly informed.
First thing First::::: Firm up preferably in writing under proper acknowledgment with prospective employer that you have duly informed during interview that you have signed a service agreement and notice period as claimed by HR is ……………….days and joining time offered to you is ………..days and your employer is unwilling to provide acceptance of resignation, service certificate, relieving letter and you should be absorbed
on the strength of copy of resignation/proof of dispatch only……….
1. Service Agreement: Bondage in lieu of what? Some extra ordinary favor, some expenses incurred on some training that would add to your qualification? If not what is the ground for crafting/drafting/creating such BOND/Agreement?
And Liquidated damages stated in so called agreement are in lieu of what?
If employer has created such agreement to scream later that it has spent on exercise of recruitment then it can very well write the vacancy on its walls by chalk!
Moreover in fact the employee might have spent more than employer in getting the employment………………and employer might have not reimbursed even fare:::::if it has then its claim can be limited to the amounts paid to employee!
Is it stated that employer ALSO shall not terminate the employment AND if it does it shall ALSO pay equal compensation?
The contract of employment should promote equitable discretions or it can easily be termed arbitrary!
The employer may scream that no one can rescind the agreement he /she has signed………and use the pressure tactics and become arrogant to pull the employee to court of law.
Liquidated damages are not necessarily paid on demand and may have to be proved.
Courts shall and can lift the veil and may not award any compensation or if employer has in fact invested/spent may limit the claim to pro rated expenses………….
Your lawyer may opine that the agreement is unconscionable, irrational,unenforceable,void…….
2. Notice Period :
The notice period of 90 days may not necessarily be applicable on you.
Notice Period/pay is part of service conditions.
Your able labor law consultant/service lawyer may ask you a set of structured questions and may opine that you are covered……………… by the definition of ‘Employee’ as in
( Name of the state) Shops and Commercial Establishments Act ………………..‘Workman’ as in ID Act and Model Standing Orders…………………
( Name of the state) Shops and Commercial Establishments Act was enacted to govern the service conditions of employees working in establishments that are covered by this Act……………………and notice period and pay is governed by this Act………….and notice period is as per length of service and is not more than 30 days………..
Standing Orders (certified/Model) : The notice period during probation period is NIL and 30 days after confirmation of service.
( Name of the state) Shops and Commercial Establishments Act, Standing Orders (certified/Model) being an Act, instrument of law, statue shall prevail upon any private agreement drafted/crafted by employer and signed with employee e.g. appointment letter,HR policy etc…………………and any service condition that is inconsistent with these shall not survive….
The labor Inspector shall not and can not accept notice period of 90 days if you are covered by these enactments…..
You may also check and relate the rate of notice pay applied by the company…..
The company would love to claim that you are not covered by these enactments…
Your able labor law consultant/service lawyer may ask you a set of structured questions and may opine that you are covered……………… by the definition of ‘Employee’ as in
( Name of the state) Shops and Commercial Establishments Act ………………..‘Workman’ as in ID Act and Model Standing Orders…………………
The ( Name of the state) Shops and Commercial Establishments Act applicable in your case may lay down that appointment letter is to be issued and that what is to be stated in it including notice period/pay.....................it also defines rate of notice pay….
Is it stated in appointment letter that service conditions shall be governed by HR policy that is available at::::?
Notice of 21 days has to be given as per ID Act for any change in service conditions and it has to be accepted in writing………..
3. HR policy: is not a statutory document or instrument of law. It is just a private policy of the employer…………..and nothing else.
4. Experience Letter: Or Service certificate:::
Model Standing Orders :Sec16 pays down service certificate has to be issued to all employees.
( Name of the state) Shops and Commercial Establishments Act , ( Name of the state) Shops and Commercial Establishments Rules
and both of these or either of these may lay down that employer has to maintain the various forms that record that pertains to employment record etc e.g.
Tamilnadu Shops and Commercial Establishments Rules 1948:::::: FromN (service book) and FormE,F,G etc....
You can demand certified copy from your appointing authority/MD/Head-HR and also from Inspector appointed under ( Name of the state) Shops and Commercial Establishments Act in person or thru RTI........
Employee should tender some reasonable notice……………and if you have tendered some notice…………then employer must have prepared well in advance to complete the exit formalities so as to handover the FnF statement,FnF wages,service certificate, acceptance of resignation, last salary slip,PF number and a/c slips,ESIC card,Form16,NOC/NDC to you by the close of office hours….
Moreover if you affirmed in writing to adjust notice pay in lieu of notice period then it is matter of record and employer was duty bound to complete all formalities by that day and relieve you on that day.
YOU MAY NOTE THAT NOTICE PERIOD TENDERED BY EMPLOYEE CAN NOT BE PREPONED OR POSTPONED BY EMPLOYER AND THERE ARE MANY JUDGMENTS DELVIVERED BY SUPREME COURT OF INDIA.
If you are willing to pay the liquidated damages then you should attach some conditions to it e.g. handover the FnF statement,FnF wages,service certificate, acceptance of resignation, last salary slip,PF number and a/c slips,ESIC card,Form16,NOC/NDC,relieving letter should be supplied to you on the spot to you by the close of office hours….of dated on which you will handover the cheque against acknowledgment on the spot…….
You should approach an able Labor Law Consultant/Service Lawyer now with copies of all docs on record and proceed further under expert guidance of your lawyer and let your lawyer structure all communications so to build favorable written record for use at appropriate time in appropriate forum………..
You may find some other threads useful e.g;
http://www.lawyersclubindia.com/forum/Dual-employment-please-advice-114460.asp#.VJ2NSddAQ
http://www.lawyersclubindia.com/forum/Bond-amount-recovery-114437.asp
abcd
(Querist) 27 December 2014
Hi Kumar Doab,
Thank you a lot for your reply and time.
In my appointment letter, there is a clause "Termination by Employee"
In that it is written to refer to the Employment agreement signed on x/y/2013.
This agreement is nothing but related to compensation that needs to be provided if I leave company before 3 years. There is no mention of notice period.
There is one more letter I got when they increased my salary. In that it is written "Refer to HR and company's policy on intranet page www.xxxyyy.com/login.html"
I checked on this page. There are only policies realed to Leave,Holidays,Refferal and Medical insurance polcies but nothing related to notice period.
For one of my senior, the notice period was mentioned on appointment letter in Termination by Employee clause.
For me,as I said beofre, in Termination by employee clause, no notice period is mentioned.
Please let me know about this
Kumar Doab
(Expert) 27 December 2014
The moment employee has resigned he/she has ended the employer-employee relationship.
The notice period tendered by employee can not be preponed or postponed by employer.
Any change in service conditions has to be noticed to employee for acceptance.............as per ID Act it is 21 days notice................it does not matter if the private policies are kept at Intranet or not................however it is mandatory that these are supplied to employee..............for acceptance.
Everything has been discussed in detail.
For more specific discussion show all docs on record to your able lawyer and understand the merits and remedies and proceed further under expert guidance of your lawyer.
The lawyer that has examined the docs on record and inputs can advise you the best.
abcd
(Querist) 28 December 2014
Hi Kumar Doab,
Thank you a lot for your reply and time.
One more thing I wanted to add is that I am under probation period.
I am sure that notce period is not mentioned anywhere on my appointment letter.But I am ready to serve 1 month notice period.
If my HR doesnt agree, can I relieve myself at the end of month. What I mean is I have served a notice period of 1 month but if HR does not give me relieving letter,I will drop a mail at the end of 1 month stating that I have served 1 month notice even if it was not mentioned on my joining letter and I am relieving myself. Is this valid.
Can I take leave during notice period.
Kumar Doab
(Expert) 28 December 2014
LAST REPLY:
On line discussions have its own limitations and can not replace the advice rendered after careful examination of each document on record starting from job advt.job application,interview call letter,selection letter,offer letter,appointment letter, service agreement,HR policies, all communications/evidence on record......etc
The lawyer that has examined the docs on record and inputs can advise you the best on remedies and options and can even structure your communications…………..and can also advise you whether you shall be covered by various enactments or not ………..
1. If it is stated in appointment/increment letter issued to you:
--- "that service conditions (e.g notice period ) shall be governed by HR policies that are available on website".....
then you may download the same by copying the weblink,taking screenshots, printouts in a manner preferably that date and time and weblink gets printed..................
and examine if notice period is stated in it.....
You can always attach the soft copy/hard copy and mention NO Notice period is mentioned hence as per the appointment letter....HR policy referred to in it NO Notice Period is applicable to you..................and request for a written reply preferably by email on the same day within office hours and Redg. post so as to reach you in next 3 days.....
After all the policy is posted by HR on website hence it won’t take more than a few minutes to check and reply.
If NO Notice period is applicable then it can’t be applied…..
If Notice Period is altered it amounts to change…………….for which proper notice should be issued for acceptance and until accepted it should not apply…….
If NO Notice Period is applicable still if you are tendering notice ( addressed to appointing authority/MD by Redg. Post preferably with 30 days period) you are displaying character and employer should appreciate …however you should structure it properly so as to defend your interest and mention that although NO Notice Period is applicable to you (attach screenshots/soft copy/hard copy/email already submitted to HR etc ) you are tendering notice of resignation…………….NO Tasks are pending at your end and routine duties be assigned to you that can be completed on daily basis within and upto last day/dated in office i.e. dated………………and to whom you should handover the charge within and upto last date in office against proper acknowledgment on the spot……………..and acknowledgment of the notice be issued immediately and acceptance of resignation (and other docs as already suggested ) within and upto last date in office…………….
The notice period is to enable the employer to complete the exit formalities, install the replacement, complete handover, knowledge transfer etc………….and ALSO TO PREPARE THE FNF STATEMENT AND WAGES AND DOCUMENTS THAT ARE TO BE SUPPLIED TO EMPLOYEE ON LAST DAY IN OFFICE…….
If as per HR/Employer your understanding is wrong it should reply in writing……………..although it may claim that anything that is posted on website is applicable to you even if it is not communicated as per agreement/appointment letter signed by you……………..and may resort to verbal communications but may add comments and notings in its record………….hence you should submit reminders seeking written reply………………..and also should record (audio/visual/witnesses)……
---"refer to the agreement signed by you"
.....then it implies that appointment letter was issued to you after you have signed the agreement..........and it may have its own connotations..............
2. You are otherwise willing to pay the liquidated damages stated in this agreement.
Have you affirmed it in writing or do you have the evidence?
It is suggested that you may add a line that …………….was not provided to you that was affirmed while signing the agreement…………..implying there was no ground for service agreement /Bondage hence liquidated damages……….
Did the employer state in agreement it will also not terminate the employee for 3Y and if it does it shall pay equivalent or more liquidated damages…………?
3. During probation period the employee does not have any lien on employment, and employment can be terminated without any notice by employer……………..hence there should be NO Notice period for employee as well …………The contract of employment should promote equitable discretions…………….
Model Standing Orders have already been cited. If these apply to establishment and you, these will prevail upon any private policy of the company/employer.
The company may claim that you signed for notice period applicable to you (if any) during probation period…………
4. Leave: to employees hence leave policy has to be in accordance with provisions of the enactments applicable to the establishment e.g. (Name of the state) Shops and Commercial establishments Act……………..and employer cannot offer inferior provisions but can offer superior provisions…………vide its leave policy firmed up in accordance with negotiations with employee’s unions/ standing orders………..
The Shops and Commercial establishments Act of your state might be silent on leave during notice period ……………….and lays down the leave employee is entitled to (in other words that can not be refused) employer may claim that notice period need to be extended by the amount of leaves taken…
Leave should be applied in writing under proper acknowledgment by employee and acceptance or declinature should be supplied by leave sanctioning authority in writing by effective mode of communication………..you may also refer to Model Standing Orders……….and also leave policy of the establishment……………
The employer shall encash the earned/annual leave in FnF statement…..
You have been made clear by HR personnel that (in other words as per employer’s policy for HR personnel) if you do not serve full notice period ( even if not indicated in appointment letter,HR policy on website) you shall not get the relieving letter……….( which may mean that you shall remain as employee/absconder etc………..
The HR may not even agree to issuance of relieving letter/service certificate even if your tender liquidated damages as in service agreement and serve full notice period too since you have broken the agreement……………..
Hence it shall be appropriate to extract some written communication from employer……
Do not remain entangled with HR and escalate to good offices of appointing authority/MD….
Utilize the time to build favorable written record………..
5. The resignation can be without permission and notice..
The employee has ended the employer-employee relationship the moment employee has resigned….
The employer and HR personnel will resort to actions what they want to take……….
You must tender notice of resignation/resignation under proper acknowledgment and final resignation…………………..this is the least you can do…..
It is reiterated that you should consult an able Labor Law Consultant/Service matters lawyer NOW AND ASAP and proceed under expert advice of your lawyer and defend your interest…
REST IS UPTO YOU AND YOU MAY PROCEED AS DEEMED FIT AT YOUR END.
abcd
(Querist) 01 January 2015
Hi Kumar Doab,
Thank you a lot for all of your replies.
I will have meeting with HR regading all the topics.
abcd
(Querist) 05 March 2015
Hello,
I had resigned in my current company in Dec. 2014 and I have to serve notice period of 3 months.
Now that is after 2 months, HR has replied that my resignation is not accepted.
I am serving the notice period of 3 months and I have bond of 3 years which states that if I am leaving my company before 3 years, I have to pat certain amount.
In my resignation letter, I had mentioned that I am ready to pay bond amount.
When I had one to one discussion with HR, he said he cant relieve be as I have signed a bond and if I leave he wont give a relieving letter.
From my side, I am going by rules. Actually no notice period was mentioned on my offer letter, still I am serving 3 months and also ready to pay bond.
Please help me on this matter.
