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(Guest)

Need help in resignation/relieving letter issue

Dear Team,

i had worked a big MNC with employee 10000+ in IT. I want resolving letter from them,but they totally denying.I know i am guilty,but it was situation.

 

The case is as follows:

 

1) me & my Friend was working in MNC with 3 years 

2)  We got a job offer in June month to join in 5 days on international project abroad ,without serving 1 month Notice period( NO Bond i have) due to some project issue.

3) We  talked to my common Manager that we have some offer & release us in 2-3 days,But he said he cant do , because Upper management will not agree on his action. He told us to find some other way & to consult some seniors in other companies 

4) We Both went to our home town to do some passport formalities and told in our company that  i am sick badly & my friend took me home town.

5) we were granted 20 days medical leaves for same from manager as he agreed on medical leaves.

6) We resigned remotely when we reached abroad after our leaves over  in form of different emails mentioning that we have some family issues & we cant join back. we sent resignation email for separate day.

 

We got manager's reply after some days following one:

 

With reference to your absence from > 1month and subsequent trailing mail, following are my comments.

1)      You left office mentioning medical reason for 10 days and never join the office after that.

2)      No handover formalities completed by you as per XXXXX HR process.

3)      As per XXXXX Company  process 1 month legal notice period to be served for smooth handover, which you had not done.

4)      This is totally un-professional approach for leaving the organisation and not acceptable.

Under the present circumstances, your resignation is not accepted.You have to come to office and complete your handover formalities to move forward. In case of any further clarification please be in touch with HR.

 

 

 

We replied their this email point by point  very precisely taking guidance from HR friends & seniors,,But no reply from them after that.Then after 6 months,we one by one went to Company office again in india as they told to come to office,I met HR & told them to perform pending formalities. They didn't take any exit interview & told me that they will reply on email after discussion with technical function CTO.

 

Even after 2 months of my meeting in their office,no reply i got from them, then i keep on asking update on emails with them,today i called HR head again , He said you are absconded. Then i sent email them to reply taking Vice president HR in mail. then i got following reply from HR head:

 

We have already spoken on this subject. You had proceeded on leave and from there you had resigned and never reported back on duty. This is not a behaviour befitting a XXXXX employee. We have processed your F&F, however you will not be issued any relieving letter since you absconded from your duties.A XXXXXX employee is also obliged to the code of conduct of organization, which is mentioned in the appointment letter you are referring to. Your act was against the code of conduct and hence you are not eligible for relieving letter. There is no harassment that we have done and I advise you to not use such words in your communication.

 

My main concern is , I only need reliving letter if i can ,but they not read to give. I know i have taken risk,but it was needed then.

 

Please suggest me the way forward,I as per my discussion with some HR ,They cant use absconding word for me as not warning/termination letter was issued for me.

 

please help me  any way or what should i reply their managers i have other than legal options because i am outside india  !!!!!



Learning

 8 Replies

S.QAISAR ALI ADV. (Advocate)     23 December 2013

Pl. send all copies of correspondence you made with your employer along with the appointment letter/offer letter from your employer earlier through e mail.then complete and fruitful opinion may be given to follow up your interest.

adv.raghavan (Advocate,9444674980)     24 December 2013

first u have committed a mistake by joining another company, when u are in others pay roll, and u did not inform your earlier company about your whereabouts, and u r on medical leave as of now, nowhere u have reported that u have joined a new company abroad. my advice is fly down to india and sit with your earlier company and sort out issues,  if they ask for any penalty to be paid,in front of HR hand over all the duties entrusted to you, honour  all your commitment,because your earlier company is using a  word ABSCONDING,which may turn out to be  very bad for you.

adv.raghavan (Advocate,9444674980)     24 December 2013

first u have committed a mistake by joining another company, when u are in others pay roll, and u did not inform your earlier company about your whereabouts, and u r on medical leave as of now, nowhere u have reported that u have joined a new company abroad. my advice is fly down to india and sit with your earlier company and sort out issues,  if they ask for any penalty to be paid,in front of HR hand over all the duties entrusted to you, honour  all your commitment,because your earlier company is using a  word ABSCONDING,which may turn out to be  very bad for you.

Kumar Doab (FIN)     24 December 2013

 

Do not look at appointment letter alone

 

 

 

IT/ITeS companies are  are under Shops and Commercial Establishments Act and standing orders are applicable.............

 

 

 

The notice period is part of service conditions and is stated in standing orders (Certified/Model) applicable to the company and extended to the designation of employee, which have statutory force and being instrument of law shall always prevail upon any private agreement that employer might have signed with employee e.g......................................appointment letter/contract of appointment/service agreement/bond etc........................

 

The employer (owner/MD etc) is personally held responsible for faithful observance of standing orders.

 

The notice period/pay is also stated in Shops and Commercial Establishments Act of the state and applicable to the establishment.

 

 

It is not more than 1 month in these enactments in case of confirmed employee.

 

In case of probationer it is NIL>>>>>>>>>>>>>>>>

 

There is a provision of notice pay in lieu of notice pay in these enactments for both employer and employee.

 

 

Model Standing Orders:

 

 13.         Termination of employment: .--(1) For terminating employment of a permanent workmen, notice in writing shall be given either by the employer or the workmen - one month’s notice in the case of monthly-rated workmen and two weeks’ notice in the case of other workmen:

 

(2)           No temporary workman whether monthly-rated, weekly-rated or piece-rated and no probationer or badli shall be entitled  to any notice or  pay in lieu thereof if his services are terminated

 

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.

 

 

Standing Orders shall prevail; upon any private agreement that employer has drafted and has signed with employee e.g; appointment letter, contract of employment, service agreement, bond etc.......................

 

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

 

 

By resigning from company even if you resigned during leave or by sending resignation from home town you have not committed any crime.

 

Although you are expected to co operate for handover of charge and company property if any.

 

The only issue is that you are not able to talk out the superiors and HR.

 

You had left the HQ town on proper and sanctioned leave and you have submitted proper resignation.

 

You have not absconded.

 

Does the company (ies) not terminate employee(s) while they are on leave? And do not mind to ask such terminated employees to come and perform so called handover of charge.

If the company terminates an employee and does not ask for Andover of charge then it implies no so called handover of charge exists.

 

The so called ‘Code of Conduct’ is not law of the land and if company violates its own code of conduct if it initiates termination then it can not and hence must not scream and cry for so called ‘Code of Conduct’.................

 

Why you should not write words like ‘Harassment’ while in fact it is ‘Harassment’?

 

Reliving letter signifies that nothing is due towards employee and employee has been separated.

 

If company has not settled your FNF dues an documents it is under obligation to supply( not just issue) then it is at fault and even under debt as unpaid wages can be treated as ‘Debt of Employer’.

The day for payment of FNF wages is last day in office, within next 3 days or max. by usual pay day.

 

Since the HR has not disbursed and supplied FNF wages in time it is showing tantrums to slip away from punishment and penalty.

Company can be reported to Payment of Wages Inspector and penalty per instance can be Rs.7500/instance.

 

Each employer is under obligation to supply ‘Service Certificate’ and all employees are eligible to get it.

 

If employee has resigned and company has re corded absconding then it falsification of record.

 

You may demand certified copy of service card and to allow examining your personnel file.

 

You have joined another company after tendering resignation from current employer.

Hence there is no case of dual employment.

 

Resignation can be without permission and notice.

If in appointment letter, standing orders notice pay in lieu of notice period is stated then it is the max. liquidated damages employee has to tender.

 

Instead of remaining entangled in conversations with Heads and others approach in writing under proper acknowledgment by redg. post preferably, the good offices of appointing authority, MD, Chairman, and citing performance, contribution demand waiver of notice period.

The good offices can waive off.

 

 

Contest the allegation if any successfully and do not hesitate to approach your labor consultant/service lawyer and must obtain acknowledgment of having received resignation, acceptance of resignation, the original and correct FNF statement as hard copy under seal and signature by hand of the competent employee for verification and acceptance by you, Form 16 as per correct FNF statement, payment of earned wages and FNF dues by bank DD only,  service certificate, relieving letter ( with good comments. Avoid without comments and with adverse comments) , NOC/NDC, PF number/account slips of entire period of service, ESIC card, Insurance card, salary slip of last month and all month’s of service, etc...

 

 

In case of dispute employee can approach:

 

 

 

-Lawyer/law firm: A legal notice can help to drill sense into the heads. You may request your lawyer to include the HR personnel, this Head, appointing authority, 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.

 

If you are not covered then your lawyer may like to examine job advertisement, appointment letter, service codes and regulation applicable in the establishment.

 

Your lawyer may advice in such a case to send cheque for payment of notice pay ( ideally @ Basic+DA) and demand that a proper receipt be issued and notice pay be adjusted in FNF statement and FNF amounts be reduced and form 16 be issued as per net amounts after adjustment of notice pay.

 

Courts do not restrict themselves to appointment letter alone.

 

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

 

 

-Inspector under Shops and Commercial Establishments Act; 

 

 

-o/o Labor commissioner

 

-Civil Court.

 

 

 

 

 

There are various threads on similar issues e.g;

.

 

Enough has been discussed in this thread and there are many threads on similar matter e.g;

 

https://www.lawyersclubindia.com/forum/Company-not-willing-to-accept-my-resignation-94221.asp#.UrRf6dIW1MA

 

https://www.lawyersclubindia.com/forum/Employer-not-issuing-experience-certificate-93887.asp#.UrRhVdIW1MA

 

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

 

https://www.lawyersclubindia.com/forum/Resignation-without-serving-notice-period-94178.asp#.Url4WtIW1MA

 

 

 

 

 

 


Attached File : 84546643 model standing orders industrial employment standing orders rules.pdf downloaded: 124 times

(Guest)

Dear All,

Good evening.

 

i have made a reply using your help in my case that my company is not agreeing to issue me reliving letter.,please see the following reply i typed ,please do amendments & help me in making best ans to them so that they think twice .

please email me on ashish_chadha11@yahoo.com 

 

thanku so much in advance sir

 

-----------------------------------------------

 

Writing mail to AVP again 

 

 

Dear Sir

I hope you have undergone following coversation in past days that how i had been mis-interperated by Techincal & HR team.

 

 

As per Commercial Establishments Act and standing orders, 1946 ,i have already completed & followed all process which i am obliged to .

 

 

1) The notice period is part of service conditions and is stated in standing orders (Certified/Model) applicable to the company and extended to the designation of employee, which have statutory force and being instrument of law shall always prevail upon any private agreement that employer might have signed with employee e.g.appointment letter.There is a provision of notice pay in lieu of notice pay in these enactments for both employer and employee * i am ready to settle with same already,but my word is never listened.

 

 

2) I have already given my handover on E-mail & also phisically presence of 28 October in SNOC Campus which was mentioned by Reporting Manager last time.

 

 

3) I have not kept any belongings of Company.

 

4) By resigning from company even if i resigned during leave or by sending resignation from home town ,i have have not committed any crime in the way of absconding that a Manager is using .Although i was  expected to co operate for handover of charge and company property if any,which i did faithfullu & properly already as the best way i can do in that time which was acceptable as no reply from Company team after i sent Handover details on mail & was available to support on call & there was no pending job at my end.

 

6)I had left the HQ town on proper and sanctioned leave and i have submitted proper resignation.So,i am not absconded.I advise not to use such words in any future communication.

 

7) I have already followed ‘Code of Conduct’ which is not law of the land and if company violates its own code of conduct if it initiates termination then it can not and hence must not scream and cry for ‘Code of Conduct’.

 

8) Why i  should not write words like ‘Harassment’ while in fact it is ‘Harassment’?

 

9) It has been 8 Months since i filed my resignation,NO one from HR contacted me since that to complete your F/F ,Exit,Handover if they had any objection at that time.As i would like to clearly mention that Reliving letter signifies that nothing is due towards employee and employee has been separated.If company has not settled your FNF dues an documents it is under obligation to supply( not just issue) then it is at fault and even under debt as unpaid wages can be treated as ‘Debt of Employer’. 

 

10)I have been in office again to settle down the case,but no response from your end,No exit Interview was taken, since the HR has not disbursed and supplied FNF wages in time it is showing tantrums to slip away from punishment and penalty.

 

11)Also i would like to clearly mention that Every permanent  workman  as per commercial Establishments Act and standing orders, 1946  shall be entitled to a service certificate at the time of his dismissal, discharge or resignation from service.If employee has resigned and company has re corded absconding then it falsification of record.

 

12) It is the right of Employee to get certified copy of service card and to allow examining your personnel file.

 

13) Resignation can be without permission and notice.If in appointment letter, standing orders notice pay in lieu of notice period is stated then it is the max. liquidated damages employee has to tender.

 

15) I am entilted to  obtain acknowledgment of having received resignation, acceptance of resignation, the original and correct FNF statement as hard copy under seal and signature by hand of the competent employee for verification and acceptance by you, Form 16 as per correct FNF statement, payment of earned wages and FNF dues by bank DD only,  service certificate, relieving letter, NOC/NDC, PF number/account slips of entire period of service, ESIC card, Insurance card, salary slip of last month and all month’s of service.

 

 

 

In my case,it been clearly showing that judgement has been given one sided,Managers just wanted to set example of hard decision & to afraid other employee taking my name in absconded way,seven not hearing single word from employee. Employee kept on screaming even in trailing mails & asking reminders,then phisically went the HQ again to settle the issue,But all was decided already by function heads as preassumption

 

 

I hope i get my rights as per Indian Legals aspects.

 

If any clarity needed from my end,Please drop me an email. I am 24*7 to support & settle the case since day one unlike CC people in Email.

 

Regds

ashish chadha

Kumar Doab (FIN)     25 December 2013

 

Till an employee achieves maturity and understanding to that levels that one can become competent, an employee should always consult and proceed under expert advice of his counsel.

 

 

 

It is understandable that any one would like to feel that he can handle anything.

 

However in your case as understandable from the draft of your posts you are not ready to handle the matters on your own.

Therefore till you achieve that level of maturity you should always consult and let a competent, mature and expert person draft and structure your written communications.

 

Your draft of the email to your AVP is not proper and is not properly drafted.

You should avoid sending it the form and manner posted by you in this thread.

 

The way you wish to write (remember you are not talking when you sign on a document) can land you from frying pan into the fire.

 

You have certainly not followed the internal policies of the company and have been proceeding on your own and we feel that at the time you left the service also you had not consulted any one.

 

Our impression is that you have neither discussed with elders in the family, competent and experienced well wishers, nor any lawyer/law firm nor any Trade Union leaders.

 

While you should have shown all of your documents and record to these gentlemen and thereafter you should have proceeded under their expert advice.

 

In your latest post you have posted that you have already handed over the charge etc as per instructions of your manager in some campus. Thereafter nothing should be pending at your end. If there is anything pending company should write to you.

 

 

The posts that are posted by experts/members are heartfelt suggestions.

 

On line discussions have its own limitations.

It can not replace in person discussion ad advice from a competent and experienced lawyer.

 

If your AVP and other superiors in the company become rigid he can let the matter be decided by company’s legal team/cell and thereafter either you or company may drag the matter to court of law.

 

Litigation can be stressful for many employees and lengthy too.

 

It is reiterated that:

- Your draft is not proper.

-It is rather provoking and offending.

-You should not submit it to your AVP.

-You must at once seek guidance and counsel of elders in the family, competent and experienced well wishers,  lawyer/law firm , Trade Union leaders. Let them draft and structure your representations.

 

The lawful authorities have already been pointed out and there may be other authorities also which your counsel can point out to you.

 

In future too it shall be proper for you to consult before you act on your own.

 

 

 

 

Madhusudan (Sales)     25 December 2013

Hi all

I am working in a private company, I resigned the copany on 20th Nov-13 and I served for 1 Month of noties period as the copany policy is to served for 3 months if fail to served he have to pay CTC for that, So I served 1 month and I paid CTC amount for 2 month and I have no Due at all, but company is not providing me the reliving letter but it is nessessory me to submit to the new company, please help me in this case even my copany accepted my resignation.

Please help me.

 

Madhusudhan

Kumar Doab (FIN)     25 December 2013

Other thread by the querist:

 

https://www.lawyersclubindia.com/forum/Management-misbehave--94611.asp#.Urqo-NIW1MA

 

@ Madhusudan,

 

You have posted that:

 

The notice period is 3 months, you have tendered notice period of 1 month , company has accepted it, you have tendered notice pay of 2 months @ CTC and company has accepted it and now company is declining to supply relieving letter, although nothing is pending at your end.

 

In such a case employer of the establishment himself or order any of his competent employee to issue the relieving letter to you without any tantrums.

 

Such matters are best resolved by applying rapport, goodwill and exceptional levels of persuasion, persistence, reasoning, negotiation skills.

 

These matters are best taken up thru employees and trade unions.

 

The employers in some states have formally united and have decided that notice period shall be increased to 3 months for an outgoing employee and if employee does not serve full notice period FNF shall not be done and relieving letter shall not be issued and supplied.

 

Although such employers neither give 3 months notice period if they issue termination order nor give three months joining time in offer letter issued to incoming employee.

 

What is the option for employees?

 

Form employees unions and ‘Works Committees’ within the companies, IC’s, or be a part of employees unions and affiliate with trade unions.

 

 

The trade unions are more than willing to embrace employees from all trades.

 

IN many of the states the trade unions have been successfully ensuring that such matters are resolved and have succeeded to get terminated employees reinstated with full back wages.

 

The trade Unions also keep lawyer and legal support with them.

 

Are you aware that:

 

-- as in  ID Act ‘Works Committees’ is an authority. The chairman is on rotation from the side of employees and employer and equal number of representatives of employee and employer are members.

 

-- in some trades e.g. Pharma it is virtually essential that each Medical/Sales rep has to be a member of the Trade Union or the employee and managers are  virtually not allowed to function.

 

 

Are you a member of any trade union?

 

 

What is this Establishment: Industrial or Commercial?

 

You and redg. office of the company is located in which state?

 

What is your designation and nature of duties?

 

Does anyone report to you and do you sign on appointment letter, leave sanction format, termination order, increment letter etc?

 

What is the strength of employees in this company?

 

Were you under probation or you were confirmed employee?

 

 

IN which document the notice period is stated as 3 months: standing orders applicable to the company (certified/model), offer letter, appointment letter, HR policy, service rules etc.............................and do you have copy of all of these documents?

 

 

Is it stated in any of the documents that if employee does not serve the full notice period the relieving letter shall not be issued?

Did the company demand to send notice pay @ CTC by cash/cheque/DD and did it issue any acknowledgement of payment of notice pay @CTC?

 

Have you demanded acknowledgment of notice of resignation, acceptance of final resignation, FNF statement (showing recovery of notice pay @CTC), Form 16 as per correct FNF statement, service certificate, relieving letter, PF number-account slips for whole tenure of service, salary slip of last month of employment, NOC/NDC, ESIC number/card, Insurance card etc and did the company reply in writing to supply these or did it decline to supply these in writing?

 

 

Standing Orders should be displayed at a conspicuous place in the company and a certified copy should be supplied to the employee free or against a nominal charge say Rs.10/.

If company does not display standing orders applicable to it or even supply even on demand then it is serious default on the end of company.

 

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

 

The service conditions stated in standing orders (Certified/Model) extended to the designation of the employee shall prevail upon the appointment letter. If Notice period in standing orders is NIL it can not be even 1 day in appointment letter....................similarly if notice pay is @ Basic+DA ins standing orders it can’t be @CTC in appointment letter.

 

Notice period is also stated in (name of your state) Shops and Commercials Establishments Act. Since it is state specific enactments the provisions may vary from state to state.

 

However notice period is not more than 1 month depending upon length of service.

 

The employer shall try to convince and innovate to give fancy designations to employees and scream that employee is not covered as ‘Workman’ as in ID Act and ‘Employee’ as in Shops and Commercials Establishments Act and the relationship is that of ‘Master and Servant’ and ‘Specific Relief Act’ shall apply and contract of Personal Service can not be enforced in a court of law.

 

 

However a competent and experienced labor consultant/service lawyer may ask you a set of structured questions and may opine that you are covered as ‘Workman’ as in ID Act and ‘Employee’ as in Shops and Commercials Establishments Act.

 

In the absence of coverage for the notice period/pay job advertisement calling for job applications, offer letter, appointment letter, service codes and regulations, service rules of the establishment may be looked into.

 

If there is a provision of notice pay in lieu of notice period then employer and employee both should adhere to the bilateral agreement signed by them in the form of appointment letter, contract of employment etc.

 

Managers can also form their unions and can negotiate service conditions with employers.

 

Any employee can negotiate service conditions with employer and can decline to sign if the service conditions offered to him/her are not conducive.

 

It is not mandatory to sign the appointment letter or any other document drafted by employer.

 

Employee should retain access to a lawyer and must consult on all imp. matters before proceeding on his own and siging any document blindly and in haste.

 

Notice period of 1 month by all counts is sufficient for the employer to put his house in order and as per facts posted by you your employer should issue relieving letter without showing any tantrums.

 

If you are not able to handle the matter on your own you can approach any of the forums as already posted in previous posts above in this thread.

 

 

 

 

 

 

 

 

 

 

 

 

 

 


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