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Anoop (Software Developer)     03 July 2014

Employer refusing to give exp certificate

Hi I worked in an IT firm for 6 months. I resigned from the company one month ago. They agreed to provide me the experience certificate after 1 month. But now they are refusing to give me the experience certificate. I have no proof with me that I was an employee in that company except a bond letter. Now they are asking me to submit the bond letter, then only they can go with the resignation procedures. But I have no guarantee that I will get the exp cert after submitting the bond letter. So even if I submit the bond letter can I move legally(I have no other proof) for getting the exp cert if they refused to give me? And is it necessary to submit bond letter for getting exp cert? Please reply me.

Thanks



Learning

 8 Replies

Kumar Doab (FIN)     06 July 2014

You were located in which state in this company?

How many employees are employed in this company?

Were you under probation period or your service was confirmed in writing?

Did the company issue appointment letter, salary slip of each month, PF number, ESIC card, I.Card, etc to you?

Does the company have an office at your current location or in state where you are located now?

There is no need to return the Bond document as company has its copy with it.

Service certificate has to be issued to all employees on last day in office.

 

 

Anoop (Software Developer)     06 July 2014

Thank You so much for the response Sir.

The company is locating in Technopark, Trivandrum. They also have a branch in Ernakulam which was opened 4 months ago. Like I said, I joined this company on Nov, 2014. That time there were around 15 employees who were in the Animation wing. There was no IT wing till we joined there. The company recruited around 10 peoples (all freshers) including me for the IT wing.  So when we joined there, there were around 25 employees in the company. But within 2 months of our joining all the employees in the animation wing resigned from the company because of salary delay, behaviour of HRM etc. Now there are just 2 employees in the Animation dept. We were the first batch in the IT wing, later many employees were joined.  At the time of my resignation there were around 30 employees working in that company. Also around 15-20 employees were resigned during the period of 6 months.

I was appointed as a Junior Software Developer on 29 November, 2013. I was offered a salary of 10-15K per month after the completion of 6 months training period during which I will be provided with a stipend of Rs 3000 per month. The salary structure is clearly mentioned in the appointment letter. It also states that I will be under probation for 6 months. But the company didn’t give me the photocopy/original of the appointment letter that I signed at the time of joining. I had also signed a bond of 1 year and paid an amount of 25K as security deposit such that the amount will be refunded only after I served 1 year duration in the company.

Even after 2 months of our joining, the company didn’t provide us the training that they offered at the time of joining. There was no senior employee (Software Engineer) in the company to give us proper training. We approached the HRM, to ask her to provide the necessary training that she agreed. But she reacted rudely and told us to complete the work that we were assigned. There were no live projects and we were assigned to do some documentation works. We were treated very badly and there are incidents of misbehaving by the MD and HRM. Many employees resigned from this company due to the bad behaviour of the HRM. Also we didn’t get the stipend in time and there was a lag of more than 2 months. We neither received the full amount of      Rs 3000. There was no proper reason for the deduction of the amount from the side of Management. After 5 months, they asked me to relocate to their Ernakulam branch and I joined their office in Ernakulam on 5th May, 2014. After I completed 6 months, I asked for the salary appraisal on 2nd June 2014 to the HRM, but she told me that they can’t provide the salary appraisal that they stated in the offer letter. She told us that she will provide us another offer letter during the appraisal time ie by the first week of July. I completed my 6 months training period and probation on 29 May,2014. The company was agreed to pay me 10-15K salary from the month of June,2014. She later called me that day (2nd June) and asked for my resignation saying that the company is not satisfied with me. I asked for the security deposit, experience and reliving documents and my 2 months stipend (April & May). She agreed to give me the documents and security amount but refused to pay me the 2 months stipend. She told me that it is the company policy. She forced me to leave the company without giving the stipend of 2 months and threaten me that she will terminate me if I didn’t submit the resignation letter and signed the no dues letter. She told me that she will send a soft copy of my experience certificate by mail within a few days and asked me to collect the hard copy of experience certificate after 30 days from the company.

Since there was no response from the HRM, I called her for the experience letter. She told me that I didn’t submit the bond letter, and then only the resignation formalities will be over. I agreed to submit the bond letter, but only after I received my experience letter in my hand. Because I have no other proof of my employment like ID card, OL or appointment letter, salary slip etc. There is no PF or ESIC. But she disagreed and told that she want the bond letter first. That day I send a mail to the HR requesting the EC. The content of the mail is:

“This is ________ and I have worked for 6 months as Junior Software Developer of __________ for the period of Nov 29, 2013 to May 2, 2014. I was resigned from this company on 2nd May, 2014. Despite the fact that I have completed everything that needs and are expected to be settled from my end till now, I still do not have my experience certificate and my relieving letter which will be important for the company that I will be working with. One month has already passed since I resigned but my experience letter is still pending. I am positive that you will help me in this matter and I wish you can reply the fastest that you can.”

She sends me a mail the next day. Following are its content:

“As per the Enquiry of your records, this is to inform that you have not yet completed the resignation formalities, as it was informed to you to submit the Document of the Company on your resignation day. We request you to return the document of the Company as the earliest as possible, Post which within 7 Business days you can collect your Experience and relieving letter from the Company address mentioned below. Please complete your resignation formalities as the earliest as possible and collect your Experience and Reliving letter.”

So I have this mail in my inbox. So can I make sure that the company will give me experience letter after I submitted the Bond letter. The company made an open remark to one of the employee that they won’t give Experience cert. to any employee unless they complete 1 year in the company. Many people suggest me that it is not safe to submit the bond letter since it is my only proof of employment. So what should I do sir?. Also I didn’t get 2 months stipend amount (because of the company policy). Is this kind of policy legal? The first month salary was given by hand and next 3 months salary was deposited to my account. I signed the no due letter. Can I ask for my stipend of 2 months after giving the bond letter? Is it right? I know its long but I hope that now you are clear about the situation. Please suggest me what to do sir. Thank you so much.

 

 

 

 

Kumar Doab (FIN)     07 July 2014

 

>>>

1.     Your company should have registered under Kerala Shops and Commercial Establishments Act. You may go thru IT policy of state of Kerala and check if Kerala has granted exemption to IT/ITeS companies ( or even companies that have office in Techopark etc) from the provisions of Standing Orders.

It is believed that it might not have as state of Kerala has issued notification bringing all commercial establishments under the ambit of standing orders……………..

You may go thru another thread and download it:

https://www.lawyersclubindia.com/forum/Standing-order-mandatory-for-kerala-comm-establishments-85438.asp#.UkxL_NKAqWM

If your company has not submitted Draft Standing Orders then Model Standing Orders should apply…………………..You may go thru Sec1-18…………………………AS per Model Standing Orders notice period during probation period is NIL and after confirmation of service 30 days.

If it has then obtain the copy from CO(certifying Officer). If standing orders are certified obtain CSO (Certified Standing Orders) from company even if against a nominal payment say Rs.10/----------------or from CO say against Rs3/page………………..

2.     Stipend is given to ‘Trainee’ appointed under Managements standing orders and in such case company should have its standing orders…………………………….or under Apprenticeship Act………………..as ‘Apprentice’ ………………………the payment of stipend and its scale is well defined in the Act…………….. and in such case the clear explanation should be provided in appointment letter. You can check with company and also Regional Apprenticeship Officer……………The payment of Stipend is to be made on the fixed day or the employer can be penalized……………………Similarly payment of earned wages has to be made on fixed pay day or employer can be penalized say Rs.7500/instance………..

If company has appointed you as Trainee but made you work as a regular employee then you are not Trainee and are eligible for payment of  wages (at least min wages) and can claim that wages that were payable after so called training period should be paid………………………..

YOU may note that state of Kerala has set min. wages for IT/ITeS employees too…………………………..

You can download it and notification too from another thread:

https://keralaitnews.com/state-scan/thiruvananthapuram/3458-kerala-government-notifies-minimum-wages-for-it-industry

https://newshopper.sulekha.com/kerala-fixes-minimum-wages-in-it-sector-rs-4480_news_1369285.htm

https://lc.kerala.gov.in/index.php/minimum-wages-notifications.html

3.     The company has to supply the original appointment letter to you, and also Bond.

4.     The Bond is created in lieu of what and why? Did the company incur some extra ordinary expense on you………………………..did it provide any training and its certification from some Inst………………………….if NO then your lawyer may opine that the Bond is unconscionable, unreasonable, void!

5.     NO security deposit can be asked and collected from employee for providing employment. Did you sign any agreement for it too by your free will? Your lawyer may opine that now you may have to agitate in court of law if Company does not refund it on its own.

Don’t sign and submit such bonds/agreements without consulting elders in the family and your lawyer and your employee’s union leaders.

6.     The salary slip showing amounts paid/deducted has to be supplied at least a day before the disbursement of wages………………

You may go thru Payment of Wages Act;13A

Minimum Wage (Central) Rules, 1950:26(3)(4)

7.     For relocation company has to pay full relocation expenses and if you were apprentice………………….permission and information to Apprenticeship Officer may have to be supplied………….

8.     If appraisal is stated in offer letter then it has to be completed in time and HR/Line Manager/Employer himself is duty bound to ensure it or it shall be breach by employer………………….

9.     NO one including HR/Employer himself can demand resignation……………….It can be termed offence…………………………..and also deemed termination.

Did you record her demand(audio/visual) or can you do it?

Did you sign the resignation letter and NO dues Certificate? If yes then if company has caused transgression and have obtained signatures but has not paid the legitimate dues you can still agitate.

Is there any witness or proof that it was extracted by pressure,coercion,threat,intimidation?

If you have resigned with immediate effect then company has squared off your dues by adjusting notice pay…………………..

All this has happened because you have neither consulted elders in the family, employees union leaders, trade union leaders, lawyer/law firm and have submitted written communication too………………………….without consulting anyone……………………………

In Kerala unions have traditionally been very strong and literacy rate has been high still how can the residents tolerate such conduct.

You can approach experience labor Consultant/Service Lawyer with all docs on record, give inputs in person………………..alongwith elders in the family and then agitate………………..after understanding the merits from your lawyer.

>>> If employer defaults on payment of wages it may default on PF,ESIC,TDS etc………..
Employee can approach:

----Employees Unions : There are employees unions that have done good job. 

IT/ITeS Employee’s unions:

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

--- Trade Unions e.g; CITU, AITUC, INTUC ............................
The trade unions are willing to embrace employees and they are very effective too.

Log onto their websites and speak to the Sec/President.

Still if you find any difficulty write back and we may be able to guide you further…………..


--- Inspector under Kerala Shops and Commercial Establishments Act, 
Notice period as per this Act for service period less than 6 months is NIL and for more than 6 months is 30 days only.

The employer has to maintain and submit requisite forms and registers according to Shops and Commercial Establishments Act. If the employer makes false entries it is offence.

You may go thru;

Kerala Shops and Commercial Establishments Act: Sec 2(4,6,7,9,12,), 5A,5C,6,7,13,14,15,17,18,26,28,29,30,…………..

Kerala Shops and Commercial Establishments Rules

 

--- Inspector under Payment of Wages Act: applicable to all employees drawing wages up to Rs.18000/pm as per def. of wages in the Act. 
You may refer to: Payment of Wages Act; Sec13A and 2: 3*[(i), (ia), 3*[(vi), 3, 4 ,5, 13a, 14, 15, 16, 17A, 20………….. and if the Inspector agrees to cover you he may proceed for recovery of wages.


--- O/o Labor Commissioner: The Labor Inspector might also be officiating as Inspector under Payment of Wages Act, Inspector under Punjab Shops and Commercial Establishments Act, Small Enterprise Act…………………………..however you may lodge complaints mentioning the enactments separately.

----RPFC thru nearest PF office
----ESTC Inspector in jurisdictional ESTC office; Applicable to all employees drawing wages (as per def. wages in the Act) up to Rs.15000/pm.
--- ITO; TDS where you file your ITR


--- CIT-TDS (jurisdictional) where company files ITR
----Lawyer/Law firm

---Civil Court

Employees have been contemplating to file criminal complaints u/s 406, 420……………………………and to approach employer as creditors treating unpaid wages as debt on employer e.g;

https://www.lawyersclubindia.com/forum/details.asp?mod_id=72072011&offset=1#.UvYBGEeBmXV



https://www.lawyersclubindia.com/forum/Full-n-final-settlement-100310.asp#.U0AEW0eBmXU




The employees have even filed Winding Up petitions and have succeeded.

 

Let employer reply whatever it wants.

 

 

At Kerala 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.

 

 Don't treat this post as a draft for copy and paste and to send to your company.

Discuss with your lawyer alongwith elders in the family and show all docs on record let your lawyer draft your representations.

 

 

Kumar Doab (FIN)     07 July 2014

Attached


Attached File : 303271471 se act kerala.doc downloaded: 85 times

Anoop (Software Developer)     07 July 2014

Thank you so much sir for explaining me each and every details for me. Like you said all this happened because we weren’t aware about this. We are all a group of fresh engineering graduates and there were no senior employees in the company or any elders to ask for help regarding this. After going through each and every point in your post, now I am clear about the injustice that the company made to us.

The company didn’t give us the original appointment letter or its copy.

The company didn’t provide us any training or incur any expense on us, hence the bond is unreasonable.

The salary slip showing amounts paid/deducted has to be supplied at least a day before the disbursement of wages. But my company didn’t provide us any salary slip.

The minimum wage in the IT industry is Rs 4480 according to minimum wages Act. We were offered Rs 3000/month

No deduction shall be made from the wages of any employee in an establishment on account of any day on which a holiday has been allowed in accordance with the” THE KERALA SHOPS AND COMMERCIAL ESTABLISHMENTS ACT. 1960”. The company deducted our wages for all Saturdays and for each day that the company declare as OFF day. To be clear if there are 4 Saturdays, 2 public holidays and 3 OFF days, our salary will be deducted by 900Rs even if we didn’t took any leave that month.

The company had asked resignation of an employee and told her that the company can give her either the caution deposit or Experience certificate (she chose caution deposit and submitted her resignation). The salary of 2 months won’t be given. The company is giving salary with a lag of 2 months, hence if anyone resigns; he/she have to leave without 2 months salary.

The company forced me to resign and sign the no due form without giving salary.

For relocation company has to pay full relocation expenses. But no employee get any amount as relocation expenses.

Thank You sir for the valuable time that you spent for me. I can use this information to help other employees who are facing injustice from this company. Now I am working as a Software Developer in another company and I am trying to recover from the past experience that I faced in my previous company.

Kumar Doab (FIN)     07 July 2014

Appraise the students unions of all such malpractices that companies do with candidates recruited thru Campus Placements.......................and let these be blacklisted..................

 

IT employees are internet savvy and have run many campaigns on social portals like Facebook successfully.......................

Keep the issue alive by submitting representations..................

You can lodge complaint under Payment of Wages Act within 1 year and later by getting the delay condoned.................................................and then under other acts in civil court within 3 years.................

under Workman Compensation Act any time......................

 

The company has been into severe malpractices and should have been creating false entries...................in records and registers prescribed under Kerala Shops and Commercial Establishments Act ..............................which is an offence.

There is no time limit to claim unpaid wages......................

Employee's Unions/Trade Unions know precise ways to handle such issues.

All affected employees may unite and approach unions, lawyers,inspector....................

 

Check your PM and discuss the matter with Secretary of unions and adopt strategy that is suitable for you.............................

1 Like

Anoop (Software Developer)     27 July 2014

Sir, I send a mail to the labour commissioner of Ernakulam and Trivandrum 2-3 weeks ago. And last Thursday(24/07/14), there was enquiry from the labour office at the Ernakulam Office. He spoke with the employees and asked them to give him a written statement. All the employees (around 25) present at that time wrote and signed a statement against the HRM and submitted to him. They informed him about the bond, salary delay, lack of training etc. They also mentioned that the employees who had already resigned including me didn’t received the experience certificate yet and salary appraisal wasn’t given even after 6 months. He told the employees that there will be more enquiry from the labour office.  Now is there any need of filing a complaint against the HRM for cheating at the local police station and can we ask for claim for spoiling 6 months of our career.  

Kumar Doab (FIN)     27 July 2014

Did all employees keep a copy of their statement? 

If yes obtain a copy from them for your record even if by email from their email id (preferably official).

Obtain certified copy even if thru RTI from Labor Office.

Don't let your efforts go waste.

Act properly.

Do approach a Labor Consultant/Service lawyer/law firm, and employees and trade unions.


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