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Rahul Kashyap (IT)     15 June 2014

3 notice period relaxation advice

Hi All,


I am working with a IT company in Hyderabad and I have resigned on from my duties on 13th May 2014 due to Family Medical issues in Home .

I Requested my manager for the one week work from home after resignation due to Family urgency and they agreed but they asked me to submit my Original documents as a security . Due to Urgency I submitted a Blank cheque as security which was returned to me after 1 day of joining.

Initially I had verbal communication with manager where I had clearly mentioned that I can serve notice period of one month and ready to buy remaining .In my Appointment letter it is mentioned as :

"The Appointment will subject to termination by giving one month notice and gross salary in lieu thereof.you may terminate this contract anytime by giving one month notice or gross salary in lieu thereof till your services i.e,probation period are confirmed and post confirmation it would be three months notice from you"

Though i have requested them through mail 7 times for handover but there was no reply till 13th of June and manager replied on 13th that we are not ready to relieve you smoothly before 13 Aug .

On which I had a discussion with HR and he said as it is mentioned in your Appointment letter, we will not relieve you before 13 Aug in any case

for the replacement I have taken more than 10 interviews and selected 7 candidates which were later rejected by manager (According to manager) / they were not interviewed and position was put on hold (As by Recruiting Team)


Also, they are forcing me to take new work after resignation on which my manager is threatening  me that if you will not serve notice period and provide services to the Organization till last date we will issue you termination letter and I am getting harassed from Project manager and reporting manager for which i have proof in terms of Audio and E-Mails.


Requesting your valuable comments which can help me in getting relieved from the company.

Best Regards,

Rahul Kashyap



Learning

 8 Replies

Kumar Doab (FIN)     15 June 2014

>>>The issue that you have posted is not faced by you alone but endless number of employees as employers and their attorneys i.e. Line Managers, HR personnel violate rights, norms, rules, laws with impunity and without any fear within the walls of the offices for simple reasons that;

Employees are ill informed, are not united do not become members of employee’s unions-trade unions, do not form ‘Work Committees’ in the companies,  many of them are fearsome, do not approach Labor Consultants/service lawyers and do not agitate…………………

If employee’s are united they can negotiate service conditions, form ‘Work Committees’ that is one of the authorities as per ID Act and employers shall not be able to exploit them…………………

When union are there to represent the line managers, HR , employers shall not violate the rights of employees with impunity.

 

 

Are you aware that employees can form ‘Works Committee’ and it is an authority and President /Chairman is on rotation from employees/employer and it has equal number of employees from employer/employees?

 

The Industrial Disputes Act, 1947

CHAPTER II: AUTHORITIES UNDER THIS ACT

3. Works Committee

 

 

Probably you are not aware that ‘Employers’ in your state are united and have formed unions and decided that notice period shall be increased to 3 months and it shall be made mandatory to serve the notice period……………….

 

There are IT/ITeS employees unions and female employee’s unions too and they have succeeded to get their demands met e.g;

 

https://www.itecentre.co.in/

https://ithiworld.wikispaces.com/News+Update

IT/BPO Voice of India | Facebook

UNITES Professionals

www.unitespro.org

https://www.wbitsa.org/

www.itpfindia.org/

https://itnitesunion.wordpress.com/author/itnitesunion/

 

 

Shiv Mahiti Ani Tantradyan Sena(Shiv IT SENA)

mankar.janardan@gmail.com


https://www.shivsena.org

 

 

 

https://www.amrc.org.hk/node/1088         CBPOP

https://www.freepatentsonline.com/article/Indian-Journal-Industrial-Relations/185430721.html

https://bpo.knowledgehills.com/Directory/BPO-Jobs/CBPOP-Centre-for-BPO-Professionals.aspx

 

 

https://www.dnaindia.com/mumbai/report-shiv-sena-forms-first-union-in-information-technology-sector-1465435

Shiv Sena forms first union in information technology sector

 

Trade Unions like CITU,INTUC,AITUC,BMS………….are more than willing to embrace the IT employees. Log onto their website and speak to the Secretary/President.

 

United employees can rake up the issue with Govt. Employee’s is a big community and huge vote bank that NO party/Govt can ignore.

 

 

>>> What is this company/establishment: Commercial, Industrial, Small Enterprise?

 

It should have displayed its registration Certificate at a conspicuous place e.g near entrance/on notice board! Or You may find out on your own.

 

How many employees are employed in it?           

 

What is your designation and nature of duties?  

 

Has your service been confirmed in writing?

The establishment works  for how many days/week?

 

Have you ever worked beyond 8hrs/day:::48 hrs/week and do you have its record and did the company pay OT on its own along with payment of monthly wages?

 

Has the company displayed the standing orders (Certified/Model) applicable to it, on notice board, or circulated to employees or kept at  some shared portal e.g HR portal?

 

Is it mentioned in appointment letter that service conditions shall be governed by HR policy/service rules and regulations and did the company supply these along with appointment letter………………………..or have kept these on some shared portal…………………………..and have you obtained the printed version? If NO minute that these were never supplied. This should be supplied without any cost to employee.

 

The employee can demand certified copy of standing orders and employer has supply these without any cost/or against a nominal cost say Rs.10/- demand these………..from HR/appointing authority/MD, in writing under proper acknowledgment! Employee or anyone can demand these from CO (certifying Officer) that may be DLC in O/o Labor commissioner at location of Redg. Office of the company against a nominal cost say Rs3/page.

 

 

 

Does the company have an office at location/state where you shall after leaving this company?

 

This information shall help, hence post it.

The (Name of the State) Shops and Commercial Establishments ACT was enacted to govern the service conditions of employees and IT/ITeS/BPO/KPO’ are covered by it. Standing orders are also applicable.

The OT and rate of OT @ double wages, notice period/pay is satted in it.

The compnay can provide benefits superior than the act but can’t provide inferior to the provision of this act.

The company may claim that you are in ‘Exempt’ category for OT however Designation alone does not decide employee is covered as ‘Workman’ as in ID Act and ‘Employee’ as in (Name of the State) Shops and Commercial Establishments ACT.

 

>>> You have posted that:

 

---- “I Requested my manager for the one week work from home after resignation due to Family urgency and they agreed but they asked me to submit my Original documents as a security . Due to Urgency I submitted a Blank cheque as security which was returned to me after 1 day of joining.

 

threatening  me that if you will not serve notice period and provide services to the Organization till last date we will issue you termination letter 

Do you have a record/evidence to prove it?

Did you minute it?

 

If yes it is good.

Such Act is illegal, unlawful, bad, unfair ………………………….breach of trust……………………..violation of law of the land, standing orders…………………………..and renders employer as unworthy of being employed with.

 

ON that day company must have been under debt to you  in form of unpaid wages, incentives, OT wages, etc……………………

Leave apart any security, company can’t even ask of extract surety that you shall return to them after leave………………………….

If the issue of notice pay is there then company can adjust notice pay in FNF statement against leave encashment etc…………………….and not even against earned wages……………..until or unless there is a private agreement between employer-employee without exercise of pressure, force, coercion, intimidation………………..

The deduction of wages is well explained and stated in various enactments as per law of the land applicable to the establishment and employer……………………………and nothing other than allowed deductions can be deducted from payment of wages.

----“"The Appointment will subject to termination by giving one month notice and gross salary in lieu thereof”

The employee can tender notice pay in lieu of notice period……….

The notice of resignation and subsequent communications should be carefully drafted and should be submitted preferably by letter thru redg. post or from personal email…………………and print outs be generated………

 

YOU MAY WITHOUT FAIL STATE IN NOTICE OF RESIGNATION AND SUBSEQUET COMMUNICATIONS THAT NO TASKS ARE PENDING AT YOUR END AND ROUTINE DUTIES BE ASSIGNED TO YOU THAT CAN BE COMPLETED WITHIN AND UPTO LAST DATE IN OFFICE (EXPIRY OF NOTICE PERIOD of ……….days, TENDERED BY YOU) AND TO WHOM YOU SHOULD HANDOVER THE CHARGE AND COMPNAY PROPERTY ( DRAW A LIST AND ASK TO VERIFY) WITHIN AND UPTO LAST DATE IN OFFICE……………………UNDER PROEPR ACKNOWLEGMENT ON THE SPOT……………AND TO INFORM YOU THE EXIT FORMALITIES IF ANY IMMEDIATELY.KEEP COPIES OF NOC/NDC ETC………………and any other document that you are asked to obtain………………………………………..

 

YOu may add that and the acknowledgment of notice, acceptance of resignation, hard copy of  correct FnF statement for verification and acceptance by you, payment of FnF wages by bank DD only,Form16 as per correct FnF Statement, service certificate, relieving letter (ensure with good comments, of course not with adverse comments, and avoid without  comments), PF number/PF a/c slips or e-passbook of each year of employment, ESIC card, Group Insurance policy number, Health insurance policy number and I cards, NOC/NDC, certificate of handover, acknowledgment of company property etc…………………….is supplied to you by redg. post within and upto last day in office by redg. post and that postage prepaid self addressed envelope is attached.

 

YOu must highlight the contributions that you have made, appreciations, INCENTIVES, coMmendations earmed, good conduct and that you have never been issued any stinker, notice, SHOW cause notice…………………………

 

YOu cam mention the cnadidates referred by you and decsion not informed by your line manager,hr…………………

in case no internal/external candidiate is available your boss/hod should come forward to take the charge instead of being an arm chair manager…………..

 

Notice period is not dependant on T&C inserted by employer in appointment letter alone……………………….

service conditons are governed by standing orders are standing orders being intrument of law/statue shall prevail upon any private agreement that employer has signed with employee be it appointment letter, contract of emnployment……………

YOu may go thru many of the threads e.g. and pick up points useful to you….

 

https://www.lawyersclubindia.com/forum/Notice-period-102337.asp#.U51N3pSSwb8

https://www.lawyersclubindia.com/forum/Whether-notice-period-has-to-be-given-during-probation-91808.asp#.UwDFP0eBmXU

https://www.lawyersclubindia.com/experts/Employer-not-giving-relieving-letter-476871.asp#.U51fPpSSwb8

 

It has been mentioned in one of threads that Chief Inspector under this Act stated that notice period stated in the Act shall prevail upon notice period stated in appointment letter.

https://www.lawyersclubindia.com/forum/Employer-not-relieving-employee-contt-89308.asp#.UkP5C9KAqWM

Incidentally the matter pertains to Andhra Pradesh, and the query is same of yours.

The notice period as per this Act is 30 days only.

You may go thru :

ANDHRA PRADESH SHOPS AND ESTABLISHMENTS ACT, 1988 (which is so employee friendly)

CHAPTER VII: Leave and holidays with wages and Insurance Scheme for Employees

30. Leave :- (1)……………., 31,32, 33, 34…………………

{And leave policy of the company. ( if you do not have copy of the leave policy demand a certified copy).}

CHAPTER VIII: Wages, Conditions for termination of services appeals, Suspension and terminal benefits

47, 48, 49………………

 

{There are provisions for compensation to employee. The employer has to supply copy of the termination order to Labor officials within 3 days.}

 

CHAPTER X
Appointment, powers and duties of the Chief Inspector and Inspectors

CHAPTER XII
Miscellaneous

 

Designation alone does not decide employee is covered as ‘Workman’ as in ID Act and ‘Employee’ as in (Name of the State) Shops and Commercial Establishments ACT.

Your lawyer may ask you a set of structured questions and can opine that whether you shall be covered or not.

 If you are not covered by standing orders, Shops and Commercial Establishments Act then the service conditions shall be governed by the appointment letter, service rules and regulations mentioned in appointment letter to you……………………

And  in your appointment letter notice pay in lieu of notice period is provided by employer.

Since the manager is interrupting you may escalate to appointing authority, MD……………..in writing and under proper acknowledgment.

Submit reminders and do not forget to submit final resignation too……………….

Take your next employer in confidence and make them agree that they shall absorb you without relieving letter and on the strength of copy of resignation alone. Or the next employer should agree to extend the joining time to 90 days.

Watch and defend your interest first.

At Hyderabad you can access Lawyers par excellence.

 

You may proceed under the expert guidance of your lawyer.              The lawyer that has seen all docs and examined the inputs in person can advice you the best.

Let your lawyer draft all of your representations.


Attached File : 535917470 ap se act.doc downloaded: 63 times
1 Like

Rahul Kashyap (IT)     15 June 2014

Thanks for your Reply Sir,

Please find below answers to your questions asked .

>>> What is this company/establishment: Commercial, Industrial, Small Enterprise?

It is an IT Service Company.

Company Category

Company limited by shares

Company Sub Category

Indian Non-Government Company

Class of Company

Private Company

 

>>> How many employees are employed in it?           

 400-600              

>>> What is your designation and nature of duties?  

 My Designation is IT consultant and we provide service support to a Bigger company

>>> Has your service been confirmed in writing?

Yes after 6 months of probation

>>> The establishment works for how many days/week?

It works for 5 days a week and manager had also harassed for not working on Sunday and I have proof of that as well.

 

>>> Have you ever worked beyond 8hrs/day:::48 hrs/week and do you have its record and did the company pay OT on its own along with payment of monthly wages?

Yes I have worked beyond 8 hrs ( 12 hours a day), I have record of it and company didn’t paid for overtime.Also, Extra working Hours had been billed to customer.

>>> Has the company displayed the standing orders (Certified/Model) applicable to it, on notice board, or circulated to employees or kept at  some shared portal e.g HR portal?

No Company didn’t displayed Standing order on Notice period. They have a separate Portal for only company policies and details of that portal was never shared with me before in verbal/written communication and it has been shared after one month of resignation and 7 mails for handover request. 

>>> Is it mentioned in appointment letter that service conditions shall be governed by HR policy/service rules and regulations and did the company supply these along with appointment letter?

Yes it is mentioned in appointment letter but it was not supplied with the appointment letter.

 

>>> Does the company have an office at location/state where you shall after leaving this company?

No Company does not have office in that location.

>>> Do you have a record/evidence to prove Harassment/ Termination Threat it?

Yes I have Recorded Audio proof

>>> Company can’t even ask of extract surety that you shall return to them after leave………………………….

They have even asked for Passport / Original documents in the E-Mail and manager had stated that as HR policy.

 

Looking forward for your reply.

Best Regards,

Rahul Kashyap

Kumar Doab (FIN)     15 June 2014

>>> Your reply that : It is an IT Service Company……………….is not sufficient.

 

It should have been clarified what is it: Commercial, Industrial, Small Enterprise?

 

It is being guessed that it is a Commercial Establishment and is redg. under

 

ANDHRA PRADESH SHOPS AND ESTABLISHMENTS ACT 1988

 

The company has to display its registration certificate near entrance or it can be penalized.

 

Sec;3(2)

 

Registration Certificate can be suspended: Sec5(b)

 

And also

15,16,17,18,19,30,31,32,34,35,36,37,38,40,47,48,49,50,51,52,54,59,61,68,72,74

 

ANDHRA PRADESH SHOPS AND ESTABLISHMENTS Rules 1990:

Sec: 3,16,17,19,20,21,22,23,24,25,26,28,29,30,32,33,

And various forms especially:

FormXXII: Register of Employment; Column 6 for detail of OT………….

FormXXIII: Register of Wages:; Signature/thumb impression of employee has to be taken……..

 

 

>>> As per your designation you may very well qualify to be covered as ‘Workman’ Employee’………………however let your lawyer opine finally on it.

 

>>> The max. notice period as per the Act and standing orders is 30 days.

 

>>> As per number of employees standing orders should be applicable. If employer has uploaded/displayed standing orders at its portal as stated by you then standing orders are accepted as applicable and you should at once download with web address printed on it so that you can establish that these were printed from company’s internal website and you can also demand certified copy by redg. post as already explained.

 

 

>>> If employer has extracted payment of 12 hrs from client and   paid you for 8 hours it is fraud…………..

 

If employer has made false entries in record and registers submitted to Inspector under ANDHRA PRADESH SHOPS AND ESTABLISHMENTS ACT 1988, ANDHRA PRADESH SHOPS AND ESTABLISHMENTS Rules 1990 it is once again punishable……………………

 

Since you have evidence you have merits.

 

 

Stake your claim for OT.

 

If OT, leave encashment etc is not computed in FNF statement decline to accept it in writing and that funds in bank/ac or cheue are received under protest.

 

 

>>> If manager want to work on Holiday he has to seek concurrence issue written instructions and affirm OT/Compensatory off……………… as per law of the land.

 

>>> The policies mentioned in appointment letter have to be supplied along with appointment letter. Even if employer has kept some portal it has to supply the printed version  and inform employee of such portal in writing………………….for freed download of copies as and when required…………………

 

>>> The Manager be the person designated as ‘Employer’s Representative’ as defined in Sec:2(9) of PRADESH SHOPS AND ESTABLISHMENTS ACT 1988 or registration format…………………….hence his statements verbal or written would be treated as employer’s response and he/employer can not retract it……………………

 

 

If he is demanding to impound Passport as per some stupid policy of HR then he should know NO One other than Police and court can impound……………………………..and keeping someone’s passport in illegal custody is punishable offence………………

 

The HR an employer himself can be sued for framing such illegal policies……………

 

The original certificates of the employee are his property and employer can not have any lien on it.

 

 

Apparently you have merits and don’t hesitate and you should approach your lawyer and proceed under expert advice of your lawyer.

The latest version of the Act/Rules should be available on the Dept of labor of AP website or you can buy from market.

Your lawyer would be having the latest judgments and can suggest you the appropriate forum to agitate.


Attached File : 535937948 ap shops and establishment rules 1990.111104557.pdf downloaded: 79 times

Rahul Kashyap (IT)     17 June 2014

Hi sir, Company is registered under company's Act 1956 Best Regards, Rahul kashyap

Rahul Kashyap (IT)     17 June 2014

Also I have requested for standing orders of the company and overtime policy but company had not replied to mail even after 1 reminder mail.

Kumar Doab (FIN)     17 June 2014

Sufficient has been discussed and I have nothing more to add.

On line discussions have its own limitations.

 

In case you are not able to resolve on your own entrust the matter to your able Labor Consultant/Service lawyer at your location. 

Sudhir Kumar, Advocate (Advocate)     17 June 2014

well elaborated by Mr Kumar Doab.  Nothing more to add.

VARGHESE MATHEW (Retired Personnel Manager)     20 July 2014

But the provision of Works Committee is not available to non workmen.In IT and new generation Cos there are only few workmen.Hence the chances of union/WC helping IT executives is very remote.

 

Varghese Mathew

HR/Labor Law Adviser

TRivandrum-09961266966


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