Civil Procedure Code (CPC)

Experience letter and releasing letter dispute


 

Hi,

Subject: Experience Letter and Releasing Letter dispute

I've worked for Wipro technologies from 2007 to 2010, during my employment period continuously there was background verification, But in the year 2009'Sep one of the BGV didn't clear "raising question over my 1st employer". I fought it for about 6 months but Wipro on paper didn't prove it, but neither did they give up on proving me wrong. So I decide to move on and I put my paper with a condition stating that

Resignation Letter: "There has been several rounds of discussion over my background verification over several months. Not one instance of me ***** has suppressed or hidden any information from any one neither tampered any information that i have shared with BGV team. If people who have vouched for me or for the organisation that i have worked were involved have shared any information that is either directly or indirectly related to me then, I am sure that i am not to be blamed for it. If Wipro accepts this fact then please consider this as my resignation and release me from services of Wipro. But if Wipro Accepts this fact and still is in dilemma,i think we all should move on with a happy note that Wipro found a new back ground verification process which defies its all previous Back ground check verification processes and H1b Processes and i am content that i didn't hide any of the information and gave the details 'as is' without any manipulation,which atleast proves that i am a right and honest person who has always given his everything to his employer."

 

After all this I was given a releasing letter stating that "Details provided at the time of joining were found to be incorrect" and I was also denied for experience certificate.

 

my major concern is to get a clean releaving letter and a experience letter.

please advice me on this, because I'm not able to file for work permits nor do anything....The kind of dependecies my family has on me, its just going to kill me...uffff

 

thanks

 
Reply   
 
Advocate

YOu should not have resigned instead forced them to terminate you.  YOu can file a writ petition in HC stating the facts and pray the court to direct your employer to issue Experience certificate and Relieving letter without negative remarks in it, as the charges made against you were not proved by them.  YOu should mention in the Writ petition that you were forced to resign and submitted resignation letter under pressure.

 
Reply   
 


FIN

You may submit a representation to the good offices of appointing authority, MD, CEO, Company Secretary highlighting the facts that your BGV was conducted by the company and all facts stated by you in your resume and employment record were found to be correct and you worked in your position of ............Emp. Code number............at location...............address............with company for ............long years.

During the month of .......year.............Mr/Ms..............designation............dept...............address.............raised questions about your BGV and asked the following questions..............which you answered supported by facts, and details provided by you at the time of joining were found to be correct by the company.. From this month to ..........month of Mr/Ms..............designation............dept...............address.............continued to come back to you, and each time details provided by you at the time of joining were found to be correct. However company continued to torment you without stating incorrectness of details provided by you at the time of joining, in writing on paper under original seal and signature of the competent employee alongwith certified  copy of the BGV report ( by in-house/ third party  BGV team). You were intimidated into a situation where you had no option but to terminate the employments and resignation letter supplied by you to company is self explanatory (copy enclosed). Despite having not supplied any evidence of incorrectness of details provided by you at the time of joining, in writing on paper, under original seal and signature of the competent employee alongwith certified copy of the BGV report (by in house/ third party BGV team) company issued a derogatory and penultimate relieving letter stating that "Details provided at the time of joining were found to be incorrect" and experience certificate, was denied to supplied to you. This has rendered you unemployable/unsuitable for positions suitable to your education, experience, profile, and has killed your future prospects (if you have denied work permits etc, quote the incidences). All these years you have toiled to gain educations, expertise, skill and all labor and cost is wasted due to the conduct of the company. In this context you have represented to company (mention details) and company has maintained studied silence (mention details). Mention the estimated losses suffered by you. You may request the good offices to let you examine your personnel file maintained by company. You may conclude and demand for amended relieving letter, experience certificate etc so as to be supplied to you say within ..........days and that you shall be constrained to seek legal advice and proceed legally at the cost and consequences of the company.

If good offices do not grant relief you have the option of issuing a legal notice and proceeding legally against the company.

It shall be good if you can secure an appointment with good offices apply exceptional levels of persuasion, persistence, negotiation, reasoning skills and resolve the matter in your favor. This shall be quickest and easiest solution. In all probabilities company may not provide the copy of BGV report, however your lawyer can demand it. Your lawyer can also charge the third party which has conducted BGV. This has to be a registered company. You may also reconfirm and reassure that all details provided by you are absolutely correct.

 

 
Reply   
 

Thanking you for your valuble response.

To my written knowledge BGV was conducted 5 times in my 4 years of working at Wipro, Since I was working for banking vertical this was a normal practise and I never had any objection over this. 

-I've a written email from two of the Vertical (banks) stating that only after my BGV was cleared I was allowed to work for those banks.

-During my employment H1B was filled by Wipro, approval of this happens only after a Homeland sequerities has verified employment and criminal details.  

-BGV report that failed was shared to me by one of the HR's accidently. (I've saved a copy of that)

-I've all the email communication between me, HR and BGV team.

The indirect impact to this is huge.. Since them I'm working only on contractual position, cannot file for any contries work permit, getting paid only hand to mounth but despite all of this I'm showing the experience certificate I've been provide by Wipro (if my new employer wants to except this and hire me its good else I'll continue searching).

My questions are as follow

-Experience letter and releaving letter are two different entities, Wipro has outrightly stated me verbally that they will not issue any experience certificate, Can they do this ???

Any Idea how much this might cost me financially ( a rough approximation), also recommentation on some good Lawyers for this matter.

Special Thanks to everyone.

 
Reply   
 
FIN

Regret may not know any lawyer at your location and costs involved.You can do lawyer search at this web site.

Related lawyer's link is given on the bottom of this page by LCI. It is felt that your plaint should be polished by expert lawyer. Your near and dear ones can guide you to a competent and experienced service lawyer/labor consultant.

If you have  reconfirmed and reassured that all details provided by you at the time of joining are absolutely correct, then you have all the reasons to contest the contention of the company, demand copy of the BGV report on the strength of which company has posted adverse comments in relieving letter  and challenge it.

Even if HR has shared accidently BGV report that failed, it has reached you from authentic source i.e company.

If this report is erratic, you have all the reasons to agitate and protest, with a claim that although you have been highlighting the errors company has willfully and intentionlly proceeded to step on your toes and has killed your employability and source of livelihood.

your BGV conducted by in house, third party BGV team,has been succesful 5 times in 4 years. Moreover Homeland sequerities has verified your employment and criminal details.

You have posted that "Wipro has outrightly stated me verbally that they will not issue any experience certificate," Such transactions are usually posted verbally. You should place it on record by a written representation addressed to the god offices, with the name of personnel, designation,dept, address who has made this statement, and demand the certified copy of company's policy that substantiates statement of mr/Ms..............hence company, so as to reach you say within next 7 days by redg post only.It becomes company's statement.

Any policy/change in the policy by the employer should be in equity and for mutual benefit of the employer and employee, such policy/change in the policy should be published and circulated and within the knowledge of the employee. Company might claim at any point of time that it is thier internal policy to not to issue experience certificate if BGV fails. But has this policy been circulated/supplied to employee? You shall need to prove this beyond doubt that no such  policy was ever published or circulated within your knowledge.

In releiving letter there is scope to add coloumn on Conduct :hence comments on conduct.

In case of service/work experience certificate the format as expressed in Industrial Standing Orders may be followed and coloumn on conduct can not be added, this could be the reason comapny is avoiding it. Relieving letter is issued post all settlements e.g. FNF, NOC/NDC,handing over the charge etc.

Employee can proceed to claim Experience certificate under Industrial Standing Orders,Contract law and even chase the company thru Chief Inspector as per SE act.

industrialemployment(standingorders)rules:

 

 

SCHEDULE I

 

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.

[2][schedule I - a]

 

20.  Service certificate.- Every workman who was employed continuously for a period of more than  three months shall be entitled to a service certificate at the time of his leaving the service of employer.

[3][Schedule I-B

(1)   Service Record

(ii)   Certification of service.- (a) Every workman shall be entitled to a service certificate, pacifying the nature of work (designation) and the period of employment (indicating the days, months, years),  at the time of discharge, termination, retirement or resignation from service;

(b)      The existing entries in para 16 of Schedule I and para 20 of Schedule I-A shall be omitted

 

 

 

Delhi Shops and establishments Act.

34.

 Employer to furnish letters of appointment to employees

 

 

 

Failure to issue appointment letters under section 34 of the Act to the employee amounts to 'unfair labour practice' resorted to deprive them of the benefits which accrue to them due to the length of their service; Bharat Mudranalaya v. Workmen, Delhi Gazette, dated 7-5-1970 (IT).

 35.

 Inspection of Registers and calling for information

It shall be the duty of eve occupier of a shop or establishment to produce for inspection of an Inspector, all accounts or records required to be kept for the purpose of this Act, and to give any other information in connection therewith as may be required.

 

 

Please share the outcome in this forum .It shall help many fellow citizens who visit the forum.

 

 

Related 'Labour & Service Law' Lawyers

 
Reply   
 
FIN

Pls find the attachment.



Attached File : 820809452 industrialemployment(standingorders)rules.doc downloaded 364 times
 
Reply   
 

Much thanks to everyone specially Kumar and Chandrashekar.

 
Reply   
 
Advocate

@ Kumar Doab.  Dear sir.  I have an understanding that Industrial Employment Standing Orders Act, 1946 is meant for workman and workman is as per definition of Industrial Disputes Act, 1947.  It evidently does not cover the people in managerial and supervisory cadre.  However I would be quite happy to know if there is any judgment of any HC or Supreme Court brining people in supervisory and managerial cadre under the ambit of Industrial Employment Standing Orders Act, 1946.  If you have knowledge of any such judgments kindly provide me with the details of those caselaws.

 
Reply   
 
FIN

@ Chandrasekhar,

Dear Sir,

I do not have any knowledge; hence I am unable to share.

Companies appoint candidates and designate many of them as supervisors/managers. At times these designations are decorated ones. I shall be extremely thankful for any judgment declaring the designation was for name sake. This shall help many employees who are designated managers/supervisors to deprive them the umbrella of protection as in Industrial Disputes Act. The insights, into the various reasons and logics why HR and promoters are obsessed to keep employees, confused, ill informed, and out of preview of Industrial Disputes Act, is also sought.

A competent and experienced lawyer would first satisfy himself/herself that the affected employee would fall into the ambit of a workman or not. The affected employee should reveal his/her nature of duties etc. in a truthful manner to his/her lawyer.

In this particular thread the attempt is being made to thwart and fail the intention of company to deny work experience certificate communicated verbally. The company is avoiding putting it in writing.

 
Reply   
 
Advocate

@Kumar doab.  I totally empathize with your views about employers depriving many employees the protection available in IDA.  There are some apex court judgements touching upon the subject of whether a particular employee designated as so and so can be called "workman", but that does not help much because in all those judgments I found that even a salesman was excluded from the definition of 'workman", hence it is not of much use.  The fault lies with the law makers of this country that they have not provided any forum for people other than workman to seek adjudication in these matters.

However the Apex Court in the matter of Premier Automobiles v. K.S. Wadke7, has laid down the following tests—
 

             (1)  If the dispute is an industrial dispute arising out of a right or liability under the general common law and not under the Act, then the jurisdiction of civil court is alternative;
 

             (2)  If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the ID Act, the remedy is only in a civil court;
 

             (3)  If the dispute relates to enforcement of a right or an obligation created under the Act, the remedy is available under the Act;
 

             (4)  If the right fall under ID Act, then the remedy for its enforcement is under the Act alone, then the remedy for its enforcement is under S.33-C of the Act.
 

The Apex Court in a leading recent case of Rajasthan State Road Transport Corpn. v. Krishna Kant1, has laid down the following principles—
 

                     (i)  Where the dispute arises from general law of contract, a civil suit is maintainable, even though such a dispute may also constitute an “industrial dispute” under                          Sec.2(k) or S. 2-A of the ID Act, 1947;
 

                    (ii)  Where the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the ID Act, the only remedy is to approach the forums created by the said Act;
 

            (iii)       Where the dispute involves the recognition, observance or enforcement of rights and obligations created by encasements like Industrial Employment Act (Standing Orders) Act, 1946 (which is a sister enactment to ID Act) which did not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the ID Act provided they constitute industrial dispute within the meaning of S.2(k) and                   S.2-A of the Act, otherwise recourse to civil court is open.
 
For salary entitlement :  State V. Sardarmal, AIR 1987 MP 156, suit is maintainable in a Civil court.
 
Suit challenging departmental proceedings: Is not maintainable in a civil court (R.C. Sharma v. Union of India, AIR 1976 SC 2037).  But Apex court in Remendra Kishore Biswas vs. State of Tripura observing - It is erroneous view that Civil court does not have jurisdiction to adjudicate an order passed by disciplinary authority and that only writ petition can be filed after exhausting remedies. (Remendra Kishore Biswas vs. State of Tripura  AIR 1999 SC 294 : (1999) 1 SCC 472. )
 
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