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Anuja   09 October 2015

Legal advice required

Dear Experts, I am working as an HR in a Manufacturing company. We want to recruit a person in our quality dept and after subsequent interviews , he has confirmed that he will joining in first week on Nov 15.Now the problrm is that , he has yet not resigned from his previous organisation and his notice period is 3 months. but he has assured that he will join,but relieving letter might a problem I wanted to ask , whether it is ok on our part as employer to employ an employee without relieving letter.Can there be any legal complications to us. Is this a good practice as we are just trying to fulfill the requirement as need of hr. We don't even want to set this type of practice in our organisation. What should be done ? Kindly advise. Anuja Puranik


 8 Replies


(Guest)

Dear Anuja you have yourself answered to query in your statement in end.

Itis not a good practycie for any good organisation to induct employee of other compnay without reference check from employer and getting proper relieving certificate.

But you can issue appointment letter with clear claue that in case candidate fails to submit letterof experience/relieving letter from his current  employer by ...... date. This appointment will  be automatically terminated without any further refernce in the matter.

The guy must be having 3 months notice period. So why dont you pay up to current employer notice period salary?

There is nothing illegal in hiring some one's employee.

hemal8110   10 October 2015

can I left the job in following condition

1.No appoinmtent letter with us.

2.only cheque payment is done.No mustered present but through m/c thumb impression.CCTV footage with company

3.no payment given since 2 month this is 3rd month.Verbally no reply properly. said that no fund with us.

4.Can I give notice and then left the job. can we give notice for not getting salary in time through lawyer or through police for cheating case....

 

Plrase guide us...

Sudhir Kumar, Advocate (Advocate)     10 October 2015

what about PF and ESI.

hemal8110   10 October 2015

no PF and No ESI.This is small company only 15 person worked run office  in residential area without name board.Only proff. tax is deducted.


(Guest)

if there are more than 10 employees it is covered under shops and establishment act and has to follow all rules. You are not giving proper details.The beginning query was different. IT is totally confusing thread

Kumar Doab (FIN)     10 October 2015

@ Hemal8110,

 

Alawys initiate a new thread for your query.

You have posted in many threads and have been replied.

You have initiated a thread and have been replied.

Continue in the thread initiated by you. Thus you will get specific and many responses.

 

 

 

Kumar Doab (FIN)     10 October 2015

@ Anuja,

 

It is indeed appreciated that HR personnel intiate such threads and discuss.

 First of all various labor laws applicable to establishments/employer/employees, make a mention of service certificate, that has to be isued to all employees..........................and service card is to be mainatined by employer..........................that is usually by HR for employer.

 

Relieving letter is a privately coined term and it signifies that employee has separated and nothing is due against employee.

Once an employee has initiated retirement by notice of resignation, the employer has to initiate the exit process and inform to the employee and at the same time prepare FnF settlement and ideally FnF payouts and service related documents should be handed over on LWD or say within next 3 days or max by usual/fixed  pay day...................................Employer can be penalized if earned wages are not paid on fixed pay day.

 

The future employer has nothing to do with relieving by past employer and can absorb the incoming employee on the styrngth of copy of resignation alone or say max. with copy of proof  of dispatch/delivery...................................or may disptach the resignation thru its office staff and retain the Reciept of Redg. post.

 

Unpaid wages/and even emoulments are debt on employer  and employer should pay it ASAP and clear the debt. Many judgments support it and even AVP,CEO have succeeded in winding up petitions when employer did not pay.

 

Notice period/pay is part of service conditions that are governed by various enactments applicable to establishment/employer/employee and is max.30 days............................hence if employer/employee are covered by such enactments 90days notice period may not be even worth the piece of papaer on which it is written.

 

Such enactments shall prevail upon any private rule/policy/agreement that employer has drafted and signed with employee e.g. appointment letter/contract of employment/HR policy/service rules etc.......................

 

It shall be certainly beter to absorb the employee and buy outr the notice period.

 

The employee has ended the employer-employee relationship the moment employee has resigned.

 

The salary slips, appointment letter, acknowledgment of notice/resignation,acceptance of notice/resignation,service certificate,relieving letter,FnF statement/settlement are all to be issued and supplied by employer (legal obligation on employer).............................and employee can not supply it until or unless employer supplied these. Thus any condition of termination if these are not supplied...................................may not pass the test of law. Hence its insertion in appointment letter may be good for nothing.

 

Then why to insert it.

 

You have a need for headcount and fulfill your need with suitable candidate..................and provide an atmosphere that meets the professional/financial  aspirations of the employees and you will see the attritin shall not be an issue.

 

You will be successful and sought after HR personnel by employers and employees. People will flock with you.

 

Successful industy captains are not wary of attrition as .................................people stay and also they have succession plans ready to meet any eventuality.

 

There are many talented,aspiring,ambitious employees that are with wrong and unscriplous employers and looking for change.

 

Embrace them and do  not,look for blocks.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Kumar Doab (FIN)     10 October 2015

If employee has chosen to retire by notice of resignation then employee shall choose the notice period/date of retirement/resignation/expiry of notice period..............................etc.

 

Employee can not be forced to work against his/her will.

 

If notice period/pay is applicable then employer can compute it in FnF statement alongwith earned wages/bonus/leave encashment/reimbursments/incentives/Gratuity/ etc and arrive at final payout by employer to employee or vice versa..............Future employer is not liable to pay the dues of any employee to past employer. Or is it?

 

 

During reference check the name/father's name/designation/tenure of service are usual check points that too..............................majority of the employers do not publish in writing and outside agencies ........................are hired to get it.

 

Sensible employers across the globe do  not go beyond it and do  ot indulge in hearsay,gossip,rumor.............................as it can lead to the charge and claim of defamation,discriminatory retaliation, etc...............

 

Keep the things simple and easy..................................and avoid anything that makes everything complicated.

 

 


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