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javed akhtar (SE)     02 March 2015

Need experience letter

Hello experts,

I had applied for resignation via the IT company portal and had sent a mail to my manager informing him that I want to resign due to financial priorities and career growth. I have a copy of the mail with me. The HR now tells me that this will be treated as an absconding case, as I have not served the notice period and a letter will be sent asking me to pay the recovery amount. In the soft copy of the notice, they have said that they had sent me a warning notice....but I did'nt receive any communication whatsoever (no mail/text/call from the HR). I require the experience certificate as I need to join a new IT company and the previous company is not ready to provide it even if I agree to pay the notice period recovery amount. Please let me know what steps can I take from here to get my experience letter.

Thanks a lot in advance



Learning

 20 Replies

Kumar Doab (FIN)     02 March 2015

 

Ref.your PM: You have cited the reference of following thread:

https://www.lawyersclubindia.com/forum/Absconding-from-employment-117387.asp#.VPSDBtKqqkq

You are right that your query is similar and you can pick up points from above thread.

 

1. You must deny that you have absconded and cite that you have properly resigned and attach the copy of email, and may demand the certified copy (under original seal and signature of competent employee) of resignation (by Redg. post) posted by you in software tool without any alterations...........and acknowledgment of resignation.

You should ask the company not to falsify the records.

You may add that a postage prepaid,self addressed envelope is attached for sending all communications by Redg. Post to you. 

 

2. You may address to good offices of appointing authority,MD,Chairman and attach the copy of letter sent to you, and deny  that any letter was sent to you and that you have not received any such letter, and to withdraw the charge of having absconded.

 

3. You may affirm to adjust the CORRECT notice pay in FnF statement  and supply the same on letterhead of the company by Redg. Post for verification by you…………………….and demand all other docs as already explained in above mentioned thread.

 

4. Model Standing Orders;Sec16: service Certificate is to be supplied to all employees.

 ( Name of the state) Shops and Commercial Establishments Act 

 ( Name of the state) Shops and Commercial Establishments Rules might also provide for issuance of service certificate and relieving letter.

You may demand copy of your service card,HR policy/Service Rules and regulations (and mention that these were not supplied ::::::If it is true) mentioned in appointment letter, standing orders applicable to establishment (affirm to pay the reasonable cost on demand say Rs10/-) and request to allow you to examine your personnel file maintained by the company.

 

5. You can approach :

IT/ITeS employee’s unions::::there are many now and are affiliated with trade Unions and employee should become member…..

Trade Unions e.g. CITU,INTUC,AITUC,BMS etc…..

Labor Law Consultant/Service Matters Lawyer/Law firm: Employee should retain access to an able counsel

 

Inspector appointed under  ( Name of the state) Shops and Commercial Establishments Act 

Inspector appointed under Payment of Wages Act

Labor Inspector

 

 

You may preferably proceed under expert advise of an able counsel and let your lawyer draft your communications properly.

1 Like

Kumar Doab (FIN)     02 March 2015

You may pick up points from another thread at:

https://www.lawyersclubindia.com/experts/Relieving-letter-and-service-certificate-525766.asp#.VPSCKtKqqko

1 Like

Kumar Doab (FIN)     02 March 2015

You may pick up points from another thread at:

https://www.lawyersclubindia.com/experts/Relieving-letter-and-service-certificate-525766.asp#.VPSCKtKqqko

1 Like

javed akhtar (SE)     10 April 2015

Hello Kumar,

Thanks a lot for your detailed reply!

I had prepared a staunch mail and had sent it to the Senior HR based on the points you had given me.

Out of all the demands, they have conceded to deduct the Notice Period Recovery amount from the Full and Final Settlement and pay me the remaining amount. However, they still disagree to provide me the Experience/Relieving Letter, even in light of the rules mentioned in the Standing Orders. They have 'no say' on the violation of 'Section 66: Notice of termination of service' of The Bombay Shops and Establishments Act of 1948’, as pointed out by you.

As per your suggestion I have also contacted the IT Employee Trade Unions and have got back a reply from AIITEA, they are ready to provide support in this issue and they have also asked me to contact the Labour Commissioner (LC) of Mumbai for the same.

I will contact the LC, can you please advise the next step from here? Also, will contacting the LC be sufficient to send a legal notice to the company or should a legal counsel be approached?

Thanks a lot again, for your support!

Kumar Doab (FIN)     12 April 2015

You may approach an able Labor Law Consultant/Service matters lawyer that can help you to determine that you shall be covered as 'Employee' as in Bombay Shops and Establishments Act,' as Workman' as in ID Act............and then you may approach Inspector appointed under Bombay Shops and Establishments Act...............The O/o Labor commissioner can guide you if labor Inspector is also officiating as Inspector Bombay Shops and Establishments Act and  can provide the contact details of both............

 

You can also approach Trade Unions e.g CITU/INTUC/AITUC/BMS etc......... 

 

 

The HR personnel have to follow the internal policies of employer framed for them hence they have replied accordingly.

 

Is the reply of HR in writing?

 

Legal notice is sent by lawyer. However you may prefer Labor Law Consultant/Service matters lawyer

 

The union can also serve demand notice. 

 

1 Like

javed akhtar (SE)     12 April 2015

Hello Kumar, 

The HR wouldn't send me a written reply directly on the non-issuance of my service certificate, instead they would ask me to call them and then on the phone they would actually deny providing it.

So I sent them a mail, stating that these are the points discussed on phone, please reply to this message if you wish to disagree/add anything.

Then they have sent me a reply, which seems like a baseless allegation against me! To quote them, here's their reply to a point I had asked in my mail :-


ii. Non-issuance of Experience/Relieving letter, in light of the existing Government Rules as mentioned in The Industrial Employment (Standing Orders) Central Rules, 1946.

 

 Correct as employees has not completed any clearance formalities and also done theft of company property which is a gross misconduct  

 


 

I do not understand as to why this false allegation is being made, when I have written proof (in mail) from the IT department, that I have duly surrendered all the company property (laptop, headphones etc) to the company 3 months ago. Also I had completed all the exit formalities ,at the same time and this can be seen in the software tool, designed for the resignation process.

 

I will proceed under the guidance of a Labour consultant and also I'll be aligned with the trade Union AIITEA, from whom I have a reply.

 

Thanks a lot for your support!

Adv k . mahesh (advocate)     13 April 2015

javed akhtar (SE)     13 April 2015

Try to add value to the discussion, with your each post.

Kumar Doab (FIN)     13 April 2015

 

The card/technique/strategy being played by HR is nothing new and is age old and indicator of High Headedness, rigidness, being adamant and recalcitrant……………………pseudo sense of supremacy…

You have a fight in front of you and it shall be better if you are supported by an able Labor Law Consultant/Service Matters Lawyer/Law firm …………………………..and trade unions too e.g. CITU/INTUC/AITUC/BMS etc……

 

The state of Maharashtra has additional Acts e.g. PULP,MRTP etc for employees……

1 Like

poojadixit   14 April 2015

You may approach an able Labor Law Consultant/Service matters lawyer that can help you to determine that you shall be covered as 'Employee' as in Bombay Shops and Establishments Act,' as Workman' as in ID Act............and then you may approach Inspector appointed under Bombay Shops and Establishments Act...............The O/o Labor commissioner can guide you if labor Inspector is also officiating as Inspector Bombay Shops and Establishments Act and  can provide the contact details of both............

javed akhtar (SE)     17 April 2015

Hello Mahesh,

I am not able to view your post in this thread, maybe due to some technical issues, nevertheless I thank you and would request you to re-post your reply.

 

Hello Kumar,

Thanks for your reply!

Indeed, this kind of false allegation will be detrimental to them eventually.

I had visited the office of the Labour Commissioner of Mumbai for the same and my complaint has been lodged. I will be speaking with the LC soon on the same issue. Please let me know in case of any points that I can add for a favourable outcome.

Also I have spoken to the AIITEA, and they have also asked me to send a legal notice to the company, with the help of an able Legal counsel. I will be contacting a  practicing service lawyer for the same.

In  the meantime I have asked the HR to provide me the Full and Final Calculation as well as the Recovery amount calculation on a letterhead of the company for my own verification, as advised by you initially.

Could you please point out the clauses in the MRTP and PULP Acts, that can be applicable in this case ?

Thanks a lot for all the support!

Kumar Doab (FIN)     18 April 2015

The service matter lawyer/Labor Law Consultant/Law firm contracted by you will brief you further.

The seasoned trade unions leaders can also advise you on the clauses sought by you, based on details and documents you provide.

 

You may also approach Inspector appointed under Bombay Shops and commercial Establishments Act...................and other enactments provided to you. 

1 Like

Kumar Doab (FIN)     12 May 2015

Ref. your PM;

 

You should demand acknowledgment/acceptance of resignation, withdrawal of charge of having absconding in writing,service certificate,relieving letter, Correct FnF statement showing computation of earned wages/OT/Leave encahsment/Bonus, adjsutement of corret notice pay as per  enactments applicable to establsihment/employee,Form16 as per correct FnF statement,salary slips of all months, NOC/NDC, acknowledgment of having submitted assets/handover of charge ect.....etc....

 

 

Try to keep a seasoned Labor Law Consultant/Trade Unions leaders e.g. CITU/INTUC etc by your side......

1 Like

Kumar Doab (FIN)     17 May 2015

 

You have pointed out by PM that:

“when I showed up but the HR manager didnt, citing some frivolous reason like he's out of Mumbai....So the LC rescheduled the meeting for 6th June... However, interesting thing is that, after I left the LC office, I was greeted by a very polite call from my Location HR, who told me that they are willing to give the letters once I pay the recovery amount...and that they are surprised that this information was not known to me”

 

  1. How the HR Manager has informed he is out of Mumbai? It should have been by letter? Has the LC updated in in minutes? Obtain certified copy from LC. Check if this Manager was really out of Mumbai? If not lodge a complaint that he should provide evidence that he was out. If he was out then MD of the company should have deputed another representative. Keep the foot on tail.
  2. Did you record this phone call? If No, you have erred again.
  3. Draft carefully a letter addressed to MD, with a copy of HR Manager and the HR person that called you (mention phone number from which call was made/date /time/phone number at which call was made………………………………..precise narration of statements made to you……………(and atatch the call recording if deemed fit by you at your end.)

 

You may demand copy of your service card,HR policy/Service Rules and regulations (and mention that these were not supplied ::::::If it is true) mentioned in appointment letter, standing orders applicable to establishment (affirm to pay the reasonable cost on demand say Rs10/-) and request to allow you to examine your personnel file maintained by the company.

 

  1. Demand to know how the information/communication was supplied to you and by whom on which date and to supply the copy of the communication with proof of dispatch and delivery.
  2. Demand to supply the correct FnF statement shwoing computation of earned wages/bonus/leave encashment/adjustment of notice pay @ correct notice pay for correct notice period as applicable as per enactments applicable to establishment, Form16 as per correct FnF statement showing taxes already deposited, salary slips of all months,

 

PF a/c slips of all years (with date of its delivery by EPFO to company) , NOC/NDC, acknowledgment of having submitted assets/handover of charge ect.....etc....

 

  1. service Certificate is to be supplied to all employees,even if company has an outstanding towards the employee duly substantiated by FnF statement/other documents that have been supplied to employee.
  2. Relieving letter signifies that nothing is due towards employee. (obtain with good comments on your conduct and performance).

 

You have posted that:

 “I do not understand as to why this false allegation is being made, when I have written proof (in mail) from the IT department, that I have duly surrendered all the company property (laptop, headphones etc) to the company 3 months ago. Also I had completed all the exit formalities ,at the same time and this can be seen in the software tool, designed for the resignation process.”

 

Demand to supply the acknowledgment of handover of charge,assets,NOC/NDC, and apology to have made false allegation of having absconded……………………..It is must that company should acknowledge the reciept of resignation from you and date of its receipt, and its acceptance.

 

  1. You should also mention that you shall pay only after having received correct FnF statement only (showing everything as already explained…..) and by cheque payable to name of company only (name as stated in appointemtn letter) and its acknowledgment has to be issued on letterhead under original seal and signature by MD stating it is against amount payable as stated in FnF statement dated…………………..
  2. After receipt of FnF statement you must agitate that notice period as per enactments applicable to establishment /employer/employee………………..(as already narrated) is ………………..days and @ Basic/Gross etc…………………and notice period /pay charged is for …………..days @...................and is erroneous………………….Let them satte that they won’t issue releiving letter until youpay as their demand……………………….so that you can agitate before LC and other forums later and claim refunbd and penalty………………..
  3. Don’t settle for less the  this…..
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