Employee refuse to relieve

You are employee of company that has issued appointment letter/ offer letter to you i.e. one Based at

Bangalore.

Has this company issued appointment letter to you?

What is the notice period stated in it?

Has the company inserted Gratuity component I CTC sheet/

Does the company issues pay/wage slip every month, and provide for PF, ESIC, Group Insurance, Gratuity, Bonus etc...........................and does it extract work for more than 8 hrs/day and does it pay OT.

If OT is applicable lodge claim for OT, Bonus etc  in writing as ap.

Demand to supply you the certified copy of standing orders applicable to the establishment and affirm to pay the reasonable cost say Rs.10/-.

Ask to adjust notice pay in FNF statement and also to compute OT, Bonus of all years, Gratuity, Leave encashment etc in it and supply it to you for verification and acceptance.

If you are eligible you should all of these...............................from establishment that has employed you.

How many employees are employed in this company?

Have you registered your profile with NASSCOM, NSR?

Has your service been confirmed in writing by the company?

>> You have posted that the line managers/HR/employer...............................has stated

“if you go for court then it will take around 10 years to resolve the case & my carrier will get ruin.” “they can't accept my resignation for 1 year.” “Now they put a condition on me like I have to Pay full amount of certification as well as i have to serve 3 months of notice period otherwise they will not relieve me. ‘

Record such statements and put these on record by minutes of discussion.

>> It is in your interest to be member of some trade union, employees union and be properly informed on your rights.

>>If possible try to convince the next company to absorb you on the strength of acceptance of resignation and not to press for relieving letter, and obtain their consent preferably in writing.

 In such a situation or even without such a situation, employee should always inform prospective/next employer preferably in writing that he/she can provide the acceptance of resignation, service certificate, relieving letter, only if the current employer supplies it, and he/she can provide only the copy of notice of resignation/resignation, and its POD andIf you have the requisite skills and qualification the next employer and its HR should agree.

This shall be helpful to you in the long run.

>>The cost of certification for 10 person is Rs 1.5Lac hence cost /person=Rs15000/..................

If you have not signed any service agreement/Bond then you are not liable to pay any cost/liquidated damages.

>> Notice Period:

There are threads initiated by IT/ITeS companies and affirming that standing orders are applicable to these companies.

The state of Karnataka has ended the blanket exemption granted to IT/ITeS companies and all companies were directed to submit draft standing orders by Dec2012 for certification by Mar2013.

IN the state of Maharashtra as per Bombay Shops and Commercial Establishments Act the standing orders are applicable to even an establishment selling Grocery if 50 or more people are employed with it.

Any T&C in appointment letter that is inconsistent with standing order would not survive.

Therefore you may first of all check if standing orders are certified (CSO) and extended to your designation and if yes the notice period/pay stated in CSO shall prevail upon appointment letter. If it is NIL in CSO it shall be NIL in your case even if it is stated as 3 months appointment letter.

If standing orders are not certified Model Standing Orders shall apply.

Model Standing Orders: Section13,

Notice period/pay during probation is NIL and for confirmed/permanent employee it is 1 month.

Service conditions stated in standing orders shall prevail upon any private agreement employer has signed with employee e.g; appointment letter, contract of employment......................

You may show the job advertisement, job application, offer letter, and other letters claiming job abandonment and demanding notice pay to a competent and experienced labor consultant/service lawyer and submit a fitting reply.

The lawyer that has seen all of your docs and record and advice you the best.

>> IT/ITeS companies are under Shops and Commercial Establishments Act.

Notice period/pay is also stated in (name of state) Shops and Commercial Establishments Act..........................

Your location was probably Pune.

Bombay Shops and Commercial Establishments Act shall apply and it is so employee friendly.

[38 –A . Application of Act VIII of 1923 to employees of establishment..........................

^[3B-B.  Application  of  Industrial  Employment  (Standing  Orders)  Act  to establishments

66 .Notice    of  termination  of  service..

Notice period for service> 1Year= 30 days

As per this Act notice period applicable in your case is 30 days.

>> You may find the following threads as relevant.

https://www.lawyersclubindia.com/forum/Need-help-in-resignation-relieving-letter-issue-94537.asp#.UsQdOtIW1MA

https://www.lawyersclubindia.com/forum/Employer-asking-me-to-give-2-months-notice-period-salary-95045.asp#.UsadJNIW1MA

https://www.lawyersclubindia.com/forum/How-to-proceed-to-receive-release-letter-f-f-settlement-94951.asp#.UsahENIW1MA

https://www.lawyersclubindia.com/experts/Standing-orders-442266.asp#.UrRicdIW1MA

You may go thru these and fine tune your representations as suitable to you. 

https://www.lawyersclubindia.com/experts/Standing-Orders-426366.asp#.UrKmL9IW1MA

>>You may without any hesitation approach a competent and experienced labor consultant/service lawyer.

>>In case of dispute employee can approach:

-Lawyer/law firm: A legal notice can help to drill sense into the heads and your matter may get resolved. You may request your lawyer to include the HR personnel, , CEO, Chairman, MD in list of noticees............

Designation alone does not decide employee is covered as ‘Employee’ as in Shops and Commercial Establishments Act, and ‘Workman’ as in ID Act....................

Your lawyer may ask you a set of structured questions and may opine that you are covered.

Designation alone does not decide employee is covered as ‘Employee’ as in Shops and Commercial Establishments Act, and ‘Workman’ as in ID Act....................

If you are not covered then your lawyer may like to examine job advertisement, offer letter, appointment letter, service codes and regulation applicable in the establishment, HR policy, all letters/notices issued by the company to you and can opine thereafter that you need to tender notice pay or not.................

Your lawyer can opine that you can agitate at PUNE.

-Trade Unions/ Employees Unions: They know precise ways to handle such issues

Locate their offices at PUNE and discuss.

 A letter from President/Secretary can help to drill sense into the heads and your matter may get resolved.

-Inspector under Shops and Commercial Establishments Act; 

- Inspector under Payment of Wages Act

-o/o Labor commissioner

- RPFC for PF

-ESIC Inspector

- -ITO-TDS where employee files ITR and jurisdictional CIT-TDS where employer files return. 

-Civil Court.

Hi Sir,

              Thanks for replying.

Yes i am an employee of the company which is based in Bangalore.

yes they issue an appointment letter to me & i am working since 15-Sep-2011. i am a Permanent employee of this Company.

Notice period is of 3 months.

Yes, i am getting salary slip of every month.

Around 250 employees are working for this Company.

Yes they deduct PF also.

I also have offer letter in which it is clearly written that "Your employment shall be

It is not mandatory to register profile on NSR. You may avoid registering.

Many employees are exploited due to it.

You may find the publication as relevant and useful.

Trade unions can handle such matters effectively.

You have posted that:

---“Around 250 employees are working for this Company.”

Standing Orders are applicable.

---“"Your employment shall be

terminable by issue of Three Calendar Months [90 Days](Approx 3 months) notice in writing by either party".

“

Is it stated or Notice pay in lieu of notice period.

Since standing orders are applicable these shall prevail upon appointment letter issued to you.

You may demand to supply you the certified or model standing orders whichever applies to the establishment and affirm to tender notice pay.

Employer personally is held responsible for faithful observance of standing orders.

---“I have to pay full amount & serve 3 months of full notice period otherwise they will not release me.”

You do not have to pay a penny for certification and not more than 1 month’s notice pay................

---“Even there was no Bond & commitment still they are forcing me to pay full amount & serve full notice period.”

You can approach the lawful authorities as already pointed out to you.

In the absence of any agreement if company is blackmailing, coercing, forcing to extract monies or block dues and documents your lawyer may opine that you can lodge a criminal complaint too...........................

Approach your lawyer and trade unions and your matter may get resolved. Meet them with elders in the family.

Rest is up to you.

You may proceed as deemed fit at your end.

Thank you sir,

                     I got some relaxation now.

>> Model Standing Orders;

13.          Termination of employment

16.  Certificate on termination of service.--Every permanent  workman shall be entitled to a service certificate at the time of his dismissal, discharge or retirement from service.

NOTE. - There is a provision under  this  Act for issuing a service certificate at the time of  dismissal, discharge or retirement and every person is entitled to take such certificate.

17.  Liability of 17[employer].--The [1][employer] of the establishment shall personally be held responsible for the proper and faithful observance of the standing orders.

18.  Exhibition of standing orders.--A copy of these orders in English and in Hindi shall be pasted at [2][*****] and on a notice-board maintained at or near the main entrance to the establishment and shall be kept in a legible condition.

>> IN such matters employee should proceed methodically and under expert advice of his labor consultant/service lawyer.

Employee should remain amiable, gentle..........................and must avoid emotional outbursts.

Employee should generate evidence (audio/Visual) and keep witness for use at appropriate time in appropriate forum.................

Employee must become member of trade unions and be properly informed and supported too..................

>> You must consult a labor consultant/service lawyer................................ and the lawyer that has seen all of your record and documents and has analyzed your inputs can advice you the best. On line discussion have its own limitations.

Proceed carefully and with patience.

Dealing with employer is a game of Chess and employee needs to master it.

You should succeed without any adverse effect on you.

PUNE is a big city and you should be able to find labor consultant/service lawyer par excellence.