Notice period -not served in full
Adithya
(Querist) 25 September 2013
This query is : Resolved
Hi I quit an indian MNC after serving around 22(3 weeks) days. As per the offer letter i have to serve 90 days of notice period or compenstae the company by paying the company for unserved period . But the company has the right to ask me to serve 90 complete days or compensation.
Company is asking me to serve full 90 days and they are not ready to be compensated. I had clearly mentioned that i was redy to compensate for therest of the unserved days as i was not in a position to continue and serve my full notice period. But they did not agree for it and o had to stop woking there. I returned all the company asset like laptop,ID card, and even drawer keys.
Even i have emailed them with my problems for not being able to continue with them. They insisted to come and join immidiately which i could not.
now i started receiving mails stating that they wouyld consider it as absconding as i was absent at work without prior approval.
They are saying that they would hold back my full and final settlement and no releaving letter will be issued. Please advise.
ajay sethi
(Expert) 25 September 2013
it is at the discretion of company . it is always advisable to leave amicably . serve the full 90 days and obtain full and final settlement of your accounts and obtain a relieving letter . experience certificate issued by an MNC is good for your career advancement
Adithya
(Querist) 25 September 2013
Mr Sethi, thanks for the advce. But i have alredy quit the company and joined elsewhere as the new employer does not need any relieving letter. My concern is there a way out to get the relieving letter from the previous employer as they are not willing to issue one even after me agreeing to compensate.
ajay sethi
(Expert) 25 September 2013
contact a local lawyer . necessary to go through terms of appointment letter . issue legal notice to company to issue relieving letter
Rajendra K Goyal
(Expert) 25 September 2013
Well advised by the expert ajay sethi ji. Nothing more to add.
Kumar Doab
(Expert) 26 September 2013
Learned experts have given valuable advice. Kindly follow it.
There are few options:
Either submit to the tantrums of the line managers of the company
Or
Resolve the situation in your favor and exit with written record (evidence) favoring you.
Or
Settle the matter with current employer so that it lets you continue in the employment without submitting relieving letter.
Or you may have to initiate legal proceedings against past employer.
What is this establishment: Commercial or Industrial?
You are located in which state and Redg. office of the company is in which state?
What is your designation and nature of duties?
Similar issues are discussed at length in many threads. You may find these relevant and may go thru these.
>> Relieving letter signifies employee was in employment at designation from period to period and nothing is due against him. For next employer it indicates employee is not employed elsewhere and has been relieved from duty.
If company has not issued relieving letter it might not have issued FNF statement, FNF dues and other docs also. If you have calculated dues payable by you to company and dues payable by company to you, you might not owe anything to company and company might be owing payables to you.
You may submit (by redg. post preferably) list of payables as per your own calculation and ask the company to verify it so that further action can be taken.
>> The service certificate is to be issued mentioning employee was in employment at designation from period to period. Try for its issuance from last employer and acceptance by next employer. it indicates employee is not employed elsewhere and has been relieved from duty.
Model Standing Orders (16. Certificate on termination of service) makes it mandatory to supply it in next 2 days of separation to all employees.
>> There are many threads on similar issues and trend is perturbing.
Employee should carefully go thru the T&C before signing and decline the T&C or employment if not conducive.
>> 3 months notice period is certainly for the benefit of employer.
Notice of 1month should certainly be sufficient for the employer to put his house in order.
It is job of officials of the company to find or designate replacement internal or external.
The charge is usually handed over to HOD.
>> Refer to the Standing Orders. It might be the ‘Perfect Solution’ for you.
Notice period is part of service conditions and stated in offer letter, appointment letter, standing orders (certified/Model), statue…………………….
If the company has its certified standing orders you may obtain and go thru these……………
If notice period is 1 month in standing Orders it can not be 3 month in appointment letter. Standing Orders shall prevail upon appointment letter. Standing Orders should be displayed at conspicuous place or notice board. Employee can obtain copy from employer against a nominal payment say Rs10/…………………………………and also from certifying officer (DLC) against a set fee………………………
Of standing orders are not certified Model Standing Orders may apply. Notice period is not more than 1 month in Model Standing Orders….(13. Termination of employment)…………
>> Notice period is also stated in Shops and Commercial Establishments Act……………………………It is not more than 1 month.
In another case of another employee the Labor Commissioner commented that notice period as stated in Shops and Commercial Establishments Act shall stand…………………implying notice period 3month i.e. more than 1 month may be declared void.
You may go thru;
http://www.lawyersclubindia.com/forum/Employer-not-relieving-employee-contt-89308.asp#.UkP5C9KAqWM
>> Does the condition of 3 month’s notice period and its acceptance by employee also apply to employer if employer initiates termination?
Can employee also ask to serve full notice period if employer insists to terminate the employment in 30 days or 45 days………………….or with immediate effect?
Are you aware of the incidences when employee terminated with immediate effect and did not allow the employee to serve full notice period?
The contract of employment should promote equitable discretion or the conditions can be termed arbitrary. Any policy in the larger interest and beneficial to both employer and the employee has the sanction of law as otherwise it will be easily termed as arbitrary.
This arbitrary clause hampers your interest in securing another better opportunity when it arises. It is general law that whenever there is any ambiguity in terms of contract then benefit of doubt will given to party who don’t make the contract.
>> The employee should always draft and structure the notice of resignation carefully and should mention it in notice that all tasks on hand are completed (keep copies of proof) and nothing is pending as on date and from this date till last day/date in office routine duties be assigned that can be completed within and up to last day/date in office………………………and that good offices must ensure that all exit formalities are completed within expiry of notice period/ last day/date in office and all concerned are advised to ensure it.
http://www.lawyersclubindia.com/forum/Empolyer-forcing-for-notice-period-89058.asp#.UkAj49KAqWM
>> Resignation can be without notice and permission.
If the tasks of the resigned employee are completed and properly handed over and nothing is pending there should be no reason that employee is forced to serve full noticed period.
If the tasks of the resigned employee are not properly handed over and employee is unwilling to indemnify the employer for a loss/any loss employer may ask to serve the full notice period.
You have stated in your post that you have handed over the company property.
You must state so in writing to good offices emphasizing no task is pending at your end.
>> Buying notice period or paying liquidated damages as stated in appointment letter is NOT MISCONDUCT………………………….hence there is nothing corrosive or abnormal at the end of employee. Therefore there should be no adverse entry in personnel file due to this.
Such matters are best put in writing under acknowledgment and POD should be retained.
>> Apparently the HR Head and other officials of the company are preparing their own ground to level charges of misconduct and terminate………………….
In your case HR might have conceived your case as ‘Beneficial Termination’ to deter other employees……………………………..Other employees may get terrified and become 100% compliant.
If you have record enough to establish the submission of notice of resignation/resignation, POD that may be sufficient to prove falsification of record by company.
You may vehemently deny that you are on unauthorized leave, have absented/abstained or absconded.
You must emphasize that you have tendered notice of resignation, extended it on request and left with proper notice of resignation and final resignation by keeping one and everyone including this Head-HR properly informed.
You may point out that no one in the company including this Head-HR should falsify the record and make false statements just to make an allegation and show malafide intent to harm your reputation, candidature, employability.
You must request to allow to examine your personnel file maintained by the company, containing all notes, notings, insertions…………………and seek an appointment. If you are visiting the company on dated………………………you may set this as appointment to examine your personnel file.
To avoid issuance of termination order and then getting it revoked you may think upon the option of proceeding now and seek opinion from your lawyer.
Employee can approach:
>> Lawyer/Law firm: The legal notice from lawyer can drill sense into the heads.
>> Trade Unions, employee’s group/union/IC/Guild…………………..
>> O/o Labor Commissioner: labor Inspector………..
>> Inspector under Shops and Commercial Establishments Act of the State…………
>> Civil Court
Raj Kumar Makkad
(Expert) 27 September 2013
Very well advised by experts so no more to add.
Adithya
(Querist) 27 September 2013
Thanks experts, Mr Doab's given such a comprehensive advice, its realy helpfull.
My current employer is not asking for any relieving letter but i need it in future.
I would like to proceede legally with a help of lawyer as i do not want to commit any mistake while handling such issues.
Full marks to "Kumar Doab"
Kumar Doab
(Expert) 02 October 2013
Heartfelt thanks to learned Mr. Sethi, Mr. Goyal, Mr. Makkad for their contribution and advise in this thread.
These experts are thorough gentlemen and have helped many querists with their valuable advice.
@ Aditya
Please spread awareness amongst your fellow employees. The internet is a useful media.
It is worth to be noted and appreciated that the employee and author of this thread:
--------Has clarified to the next employer that relieving letter from past employer
can not be provided…………………and made the next employer agree to it.
All employers are aware of the trends in the industry.
Majority of the employer apply this trick of declining to issue relieving letter, so the employees have to be aware and be firm/determined to find ways and means.
--------Has stated that he shall approach his lawyer and would like to proceed under the expert advice of his lawyer so that no error is made out and employee is able to resolve the matter in his favor without any adverse effect on the employee.
In today’s market scenario employees should keep access to a lawyer and should get into the habit of seeking expert advice while dealing with employers and should avoid falling into the legal traps.
If at all an adamant and recalcitrant line management/HR/employer initiates notice/show cause notice/legal notice/litigation employee would always has his lawyer by his side and the wise counsel of his lawyer to defend the employee.
While the lawyer handles the legalities the employee can focus on job and career.
Employees should always unite, form communities, groups, IC, Guild, unions and be part of trade unions.
United employees should have lawyers on retainer ship basis and keep access to lawyers for need based consultations………………………..
If the employee is alert, vigilant, properly informed, properly guided:::: in service matters there would always be a way out.
The employee that is a loner, ill informed, and that do not seek counsel on service matters and acts in haste or out of fear, becomes an easy target, and suffers loss.
The shrude employers need such fearsome and ill informed employees to create a fear psychosis to deter other employees and thus have 100% complaint employees to subscribe to their tantrums.
Retain access to your lawyer.
