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Prakash (IT)     29 October 2012

Absconding as trainee employee case

Dear Sir ,

I have a query regarding same matter . I worked in a company as Trainee for 14 month in 2006 ,and left the organisation after verbale communication with manager . Now I requested company HR to provide me exp letter for my trainee period there but HR has denied to provide me expiernce crtificate for the same stating that you are absonding from the company.

I requested them if there is any due ,you can recover from me but HR department has denied to do any settalment in this case .

I would like to add few point here these are : I did not get any letter from company regarding my joining as trainee. I only got my Bank acount opened by company to get stipend .Neither Company sent me any warning letter/communication regarding my absence ,And now they are saying that you had been absconded from company.

Please suggest the ways ,to get the expierence letter from organisation .

Waiting for you reply on this matter .

Thanks

Prakash



Learning

 5 Replies

Kumar Doab (FIN)     31 October 2012

You have posted that:

--“I did not get any letter from company regarding my joining as trainee.”

As no terms and conditions of appointment were set for you {a trainee} including notice period, notice pay no notice period should be applicable. No appointing authority, and no authority to issue separation was set.

 

“left the organisation after verbale communication with manager .”

You have not thus absconded. Your appointment was by verbal mode and you properly informed your reporting authority {Superior/manager} and left the company.

“Neither Company sent me any warning letter/communication regarding my absence ,And now they are saying that you had been absconded from company.”

Company did not object to your leaving the company by verbal mode however by  proper information to your Superior/manager, in person.

Company on its own did not set any rules for trainees and now company thru its HR can not claim there were rules.

Gossip and rumor can not be rules.

This company and this HR can not claim and make anything that comes to its mind and mouth, a RULE.

--“And now they are saying that you had been absconded from company.”

You have not. That is the stand you have to take.

--“Now I requested company HR to provide me exp letter for my trainee period there but HR has denied to provide me expiernce crtificate for the same stating that you are absonding from the company.”

Which law of the land and which rule of the company states so and empowers this company and this HR to do so????

You have to ask in writing and obtain an answer in writing.

You have to demand what you want in writing under acknowledgment.

Submit a representation in writing under acknowledgment addressed to the good offices of MD, Chairman, and Company Secretary of the company.

Did the company advertise this post and do you have the copy of the advertisement?

Did the company deduct PF? Did the company pay any bonus? Did the company issue ESIC card to you.

Trainees are recruited under standing orders of the company and apprenticeship act.

1.1.    "TRAINEE / APPRENTICE /LEARNER" (Under the Management's Scheme) is a person who is permitted to learn a trade or skill for a period not exceeding One & half  year depending on the training required.  The Management shall display and issue a copy of the Apprentice Scheme with all the details.  The Management reserves its right to modify or amend the scheme from time to time depending on the requirements.

            (  APPRENTICESHIP ACT 1961  -  NO RIGHT OF EMPLOYMENT

 

 

Trainees other than those engaged as per Apprentice Act, 1961 are covered under the Minimum Wages Act, EPF & ESIC.
However, if they are under the Apprentice Act, their appointment letters should clearly mention the scheme & its provisions, to avoid any issues later on.

 


THE PAYMENT OF WAGES ACT, 1936

 

13A.

 

 Maintenance of registers and records.

 

      5*[13A. Maintenance  of registers and records .-(1) Every employer

 shall maintain  such registers  and records giving such particulars of

 persons employed by him, the work”

 

You were recruited as Trainee under standing orders of the company or as an apprentice under apprenticeship act?

Did the company issue any salary slip or made you sign on a salary voucher?

Did the company set any leave rule, leave form for you? Did you ever avail any leave by submitting leave form and was your leave sanctioned?

Did the company issue any I. Card to you?

Did the company display its standing orders at the entrance, gate, and notice board and circulate these to employees.

Confirm if standing orders were applicable to your industry and company and did the company extend these to your designation. If standing orders were applicable and certified standing orders were not formed by your company model standing orders shall apply.

The standing orders are to be displayed at notice board and should be supplied to employees at nominal charges {say Rs.10/}. You can peruse the RTI route and request the PIO at concerned o/o Labor Commissioner {location: redg office or Corporate Office of the company} to supply you the certified copy of the certified standing orders of the company. Model Standing orders may be posted at Dept. of Labor website of your state.

 

If the company do not yield to your representation, it shall be appropriate to approach  a competent and exeprienced labor consultant/service lawyer, well versed with such matters, show all documents and give inputs in person, and let your lawyer evaluate the merits, and suggest appropriate forum if the need be.

The company may yield to legal notice of your lawyer or you may have to agitate in appropriate forum.

Model Standing Orders are enclosed. You may go thru these carefully and seek the counsel and guidance of elders in the family, competent and experienced well wishers, lawyer/law firm, to structure your representation. 

 

 

 

 

 

1 Like

Prakash (IT)     01 November 2012

Thanks For you reply : Below is the Commnet I Recieved from HRD of company.

"As per the company policy, we would not be able to issue an experience letter to you as you have not completed your exit formalities & you are no longer entitled to do anything in this regard."

Please suggest any legal advise regarding this matter.

Kumar Doab (FIN)     01 November 2012

If company has made the statement in writing it is a matter on record now.

Did the company ever supply you any of the HR policy, service rules, and exit formalities?

As per your post no appointment order, terms and conditions of appointment, so called exit formalities, so called policy of the company on experience letter was ever supplied or communicated to you.

Did the company ever instruct you to appear in office to complete exit formalities by letter, email, phone call, thru any official of the company?

As per your post no exit formality was ever communicated to you.

It is felt that notice period/pay is not applicable to trainee. Moreover company is not demanding any notice pay penalty from you. It is rather penalizing you by denying experience certificate by quoting some policy as “Company Policy”, however company has not supplied such policy to substantiate its claim.

If company has declared you absconding then it have to follow some process and procedure and apply principle of natural justice, by issuing you communications, notice/legal notice, before declaring you absconding and guilty of some misconduct, and then terminating you.

Company has not even communicated that you were terminated.

 

Did the company ever keep any of its policies etc in employee domain e.g. intranet, employee portal and provide you access to it?

Did the company ever instruct you to appear in office to complete exit formalities by letter, email, phone call, thru any official of the company?

Gossip and rumor can not be rules.

You need to counter the contentions of the company and that too successfully.

You need to have patience, and apply exceptional levels of persuasion, persistence, reasoning, negotiation skills.

A few of the lessons which can be learnt is that employee should always build record in his favor, and keep acknowledgments, proofs of delivery, and should never act in haste.

Employee should consult elders in the family, competent and experienced well wishers, lawyer/law firm before acting on his own and avoid acting in haste.

As per model standing orders :

16.

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.

The model standing orders could not be attached as button for attachment is not given in LCI website.

However you can access at:

 

https://www.lawsindia.com/Advocate%20Library/Amendments/Model_stansing_orders/MAIN.htm

 

Valuable advice of learned experts/members is sought.

If you are not able to drill sense into the company and its HR, it shall be appropriate to approach  a competent and exeprienced labor consultant/service lawyer, well versed with such matters, show all documents and give inputs in person, and let your lawyer evaluate the merits, and suggest appropriate forum if the need be.

The company may yield to legal notice of your lawyer or you may have to agitate in appropriate forum.

 

 

1 Like

Prakash (IT)     01 November 2012

Thank yo So much Kumar .

This is very helpful article in my case specially MSO's clause 15 and 16 . I was not the permanent employee of the company as stated initially I was trainee.

I did not recieved any warning  letter pertaining to my absonding and yes I I had not recieved any guideline for emplyment and notice period .

I will Keep you posted about the matter .

Kumar Doab (FIN)     02 November 2012

15.              CESSATION OF EMPLOYMENT: -

(VII)                    RESIGNATION: -

(e)    The probationary, temporary, apprentices, trainee, badlis, part time and casual employee may leave the services of the Company without giving notice or pay in lieu thereof.

You may also look into:

27.       EXHIBITION OF STANDING ORDERS: -

 

(i)   A copy of these Standing Orders in English and Hindi shall be pasted at the Manager’s Office as well as on a Notice Board maintained at or near the main enterance of the establishment marked ‘Standing Orders’ and shall be kept in a legible condition.

 

 (ii)       In case of any confliction in the meaning of the Standing Orders in English or Hindi language, the English text shall be taken to be authentic.

29. Communications

29.       COMMUNICATIONS: -All orders notices charge sheets and letters issued by the Management/manager shall be served on the workman in any of the following manners and it shall be deemed to be duly served upon him.

 (i)        Delivery by hand to workman in the premises of the factory in the presence of any other person; or

 

(ii)  By pasting the copy of the letter/notice on the Notice Board in case of refusal for accepting the same in the presence of other employee after recording/such refusal which shall be deemed to have been served up6n’the workman; or

 

(iii)       By sending the/copy of such letter/notice under registered A.D. cover and or under certificate of posting at the address last recorded by him, for this purpose or available on r6cord, in the event of workman being on leave or absent or his non-availability; or

 

(iv)       By pasting the notice at the local last address given by the workman in the presence of co-worker; or

 

(v)        By publication in the recognised news paper,

 

30.       The management is competent to engage/impart training to any person called by whatsoever name.  Such training will be imparted subject to the willingness of such person to learn particular job, skill, avocation or any type of job.  During such training, the incumbent will be given stipend to be decided by the management and not less then ITI or other apprentice.  The period of such training will not exceed 24 months in any manner,

 Now the attachment button is available.

Another set of standing orders is also enclosed herewith.

16.

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.

You may find other attachments on trainee/apprentice also useful.

You may try to meet the certifying officer who may be ALC in o/o Labor Commissioner at location of Redg/corporate office of company and apply your resources to obtain copy of certified Standing Orders of the company or peruse RTI route.

You should endeavor to understand the trainees in your company were appointed under management’s Standing Orders or Apprenticeship Act, and whether your company was empowered to recruit apprentices under rules of  your  profile to do work assigned to you.And also whether you were imparted any training or you were assigned to do the work of a regular employee and designation trainee was assigned to dodge the law.

You may also find out how many trainees were appointed at a given time and what the percentage of trainee’s vs permanent employees was. You may unearth irregularities or find that your company has been flouting norms. Thus you may get a handle on the company.

 


Attached File : 159445688 model%20standing%20orders.doc, 159445688 apprules1991.doc, 159445688 faq apprenticeship fre ask ques 2011.pdf downloaded: 190 times

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