Regarding relieving and experience letter

It is an age old trick and you have been tricked.

Employees, who do not consult beforehand elders in the family-competent and experienced well wishers-lawyer/law firm, do not become members of trade unions, and who are fearsome, ill informed, and ignorant, are east target.

Coercing, forcing, pressurizing the employee to write his own termination, extracting resignation with force can be termed offence…………………Now after so much time the burden of proof shall fall upon you.

You have posted that:

----------“my pervious company saying that you were terminated so document will not provide to you.”

You have resigned. Do you copy of the resignation submitted by you, copy of the acceptance of resignation, FNF statement………………………………………….or not?

If you have contest the allegation of the company…………………….

Record the statements of the company personnel (audio/visual) while they state that you were terminated…………………………..

Before issuing order of termination company should grant an opportunity of hearing to employee.

Do not remain entangled with line managers and HR. They are not your employer.
They are just another employee in the company.

However if you end up issuing Notice, legal notice, request your lawyers to include their names in the list of noticees…………….

You may escalate the matter ‘Finally’ to good offices of appointing authority, MD, Chairman, Company Secretary……………………..narrate all representation made so far mentioning dates, names of company personnel…………………………….designation……………..dept………………..name of company……..address………………...with brief minutes of discussion and explain your grievance, raise your demands……………….

Submit follow up reminder(s) and raise your demands for the documents (e.g. acknowledgment of notice/resignation, acceptance, work experience/service certificate, relieving letter, NOC/NDC, FNF statement for its checking and acceptance by you, Form 16 as per correct FNF statement….etc) and payments up to effective date of resignation (provide detail) by bank DD only should be supplied to you by redg. post only……………………………….so as to reach you in next 7 days along with PF account slips of all years of service, salary slip of all months.  If FNF statement is not correct decline to accept it in writing under acknowledgment.

What is this establishment: Industrial or Commercial? Company must have displayed the registration certificate near entrance on notice board.

What is the nature of business of this company?

You are in which state and HO/Redg. Office of the company is in which state?

Were you under probation?

Does the payment of Wages Act, Industrial Establishment Standing Orders Act/Model Standing Orders apply to it? The DLC in O/o Labor Commissioner can confirm it.

Standing orders are applicable to commercial establishments to which Payment of Wages Act applies.

Your state might have issued the notification to this effect.

e.g; Kerala

You may go thru:

https://www.lawyersclubindia.com/forum/Standing-order-mandatory-for-kerala-comm-establishments-85438.asp#.UgIP99KAqWM

If standing orders are not certified Model Standing Orders shall apply.

Model Standing Orders: 3.               Tickets,  11.         Payment of wages,  

13.       Termination of employment: .--(1) For terminating employment of a permanent workmen, notice in writing shall be given either by the employer or the workmen - one month’s notice in the case of monthly-rated workmen and two weeks’ notice in the case of other workmen: one month’s or two week’s pay, as the case may be, may be paid in lieu of notice.

15.      Complaints,

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].--, 18.          Exhibition of standing orders.-)

If despite the best and sincere efforts good office does not resolve and provide relief, the employee can approach:

-Lawyer/Law Firm: A legal notice by lawyer can drill sense into the heads.

- trade union leaders

-Inspector under Shops and Establishments Act

- Inspector under Payment of Wages Act 

- O/o Labor Commissioner

- -Civil Court

There are many threads which you may find relevant and useful e.g;

https://www.lawyersclubindia.com/forum/Notice-period-queries-86107.asp#.UgUL0tKAqWM

https://www.lawyersclubindia.com/forum/Previous-employer-is-not-giving-the-salary-86012.asp#.UgUL6tKAqWM

https://www.lawyersclubindia.com/forum/Wrong-termination-and-forcing-for-resignation-85949.asp#.UgUMKdKAqWM

Hi Expert,

Thanks for your valuable feed-back. I am answering few of your questions.

1. I don't have any copy of the resignation.

2. Office of the company is in Delhi, India.

3. It is a Commercial company. (Website development company )

4. I served my probation period, it was only 3 months.

5. Under the company policy there is only two conditions when employee will not receive the exp and relieving document

   5.1) when employee not serves their notice period

   5.2) absconding.

Company showing that they are comes under the CMM level, but the company not full fills the norms of CMM level.

Official hours is the company is also 9.30 hours

I am eligible to send a legal notice to the company regarding my releasing document?

And what is the possibility to receive the documents?

In addition to the Industrial Disputes Act, 1947, several states also provide for compliances under the Shops & Establishment Acts, Standing Orders Act, the employee that falls within the definition which has been provided under these enactments, would be protected up to that extent.

In absence of coverage under the said workman related enactments, letter of appointment, employment agreement and service rules need to be referred to.

Employees should become members of trade union. Trade unions know precise ways for dealing with such matters.

Company should have displayed registration certificate and standing borders (Certified or model) on Notice Board………………………………….. If the Standing Orders are not circulated to employees you can ask concerned HR person/appointing authority/MD to provide you a certified copy. While you ask for the copy mention that if the company has its certified standing orders it should state so and if model standing orders shall apply it should state so and supply you the copy of standing orders applicable to the company (certified or model) and that you are willing to pay the reasonable cost for the certified copy by redg. post only and company may inform you the amount if any to be deposited by you. You may add that if no standing orders are applicable to the company it should state so in writing…………………………..

You can also get in touch with The Certifying Officer at Delhi to obtain a copy, of the standing orders if any applicable to the company.

https://www.delhi.gov.in/wps/wcm/connect/doit_labour/Labour/Home/Acts+Implemented/Details+of+the+Acts+Implemented/The+Industrial+Employment++Act,+1946/The+Industrial+Employment+%28Standing+Orders%29+Central+Rules,+1946

3: (1) (2); Model Standing Orders…

8: Certifying Officer shall furnish a copy of standing orders ……………to any person applying therefor on payment of a fee ³ calculated at the following rates per copy

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

18: Exhibition of standing orders: A copy of these orders in English and in local language, shall be posted ³[* * *] and on a notice board maintained at or near the main entrance to the establishment and shall be kept in a legible condition…..

{ 15[(b-a) In the enquiry, the workman shall be entitled to appear in person or to be represented by an office-bearer of a trade union of which he is a member.}

You were asked to resign (in another words you were terminated) and same is recorded in your personnel file and your separation is processes accordingly.

The line managers/HR has tricked you and you do not have any copy of resignation.

You have posted that:

1. “I don't have any copy of the resignation.”  What was the hurry to resign? What allegation was leveled by company and what were you afraid of?

You were asked to confirm ‘Do you copy of the resignation submitted by you, copy of the acceptance of resignation, FNF statement………………………………………….or not?’

You have not replied on ‘Do you have copy of the acceptance of resignation, FNF statement………………………………………….or not?’

If you do not have any of these how would you claim that you had resigned?

The company which has tricked you may even claim that you had abstained/absented/absconded without any information……………..

Now you may approach a competent and experienced labor consultant/service lawyer, show appointment letter, standing orders of the company/model standing orders, HR policy, service rules, give inputs in person ( do not conceal anything), get the merits analyzed and let all representations be drafted and structured by your lawyer.

If your lawyer opines he may ask for copy of the resignation, along with other docs……….from your company.

Let us assume for a moment no adverse entry is inserted into your personnel file, since you have resigned with immediate effect, company can adjust notice pay and square of your dues in FNF statement………………….. 

“Now I got an opportunity from a company and my pervious company saying that you were terminated so document will not provide to you.”

Record this statement (preferably visual) and keep some evidence/witness.

If you were terminated as per Model Standing Orders company should have paid the notice pay and all other dues and supplied the service certificate.

“I was working in a private company since last 7 months”

2. “2. Office of the company is in Delhi, India.”

The company must have registered under Delhi Shops and Establishments Act which is so employee friendly. The registration certificate must have been displayed near entrance/on notice board by company.

{Call Centre Is an Establishment under the Shops & Establishments Act – Delhi High Court 2012 }

4. “I served my probation period, it was only 3 months.”

Were your services confirmed in writing?

You may show the appointment letter, max. probation period stated in it etc to your lawyer.

After examining the documents your lawyer may opine that your services were deemed to be confirmed.

If there was an alleged misconduct company should have issued notice/show cause notice…………and allowed opportunity of hearing.

You may carefully go thru all sections and provisions under Delhi Shops and Establishments act, relate with your matter and approach Inspector:

2. Definitions.: 5, 7,8, 30…………….., Sub-section (5)—“Commercial Establishment”

3.  Rights  and  privileges  under  other  law,  etc.,  not  affected

*5. Registration of Establishments.

21.  Claims  relating  to  wages

30. Notice of Dismissal: (a) Applicability of section 30 : In the absence of any standing orders or any contract between the employer  and  the  contesting  respondent  containing  any  particular  terms  or  conditions,  the conditions of service of the employee relating to his employment in an establishment at Delhi are covered by section 30(1) of Delhi Shops and Establishments Act,

33.  Records.—

34.  Employer  to  furnish  letters  of  appointment  to  employees.—

35.  Inspection  of  Registers  and  calling  for  information.—

37. Powers and duties of the Inspector: (b) Duties of the Inspector: (i)  that in dispensing with the services of an employee the provision of the Act and Rules have  been  complied  with  and  no  dues  payable  under  the  Act  or  Rules  have  been withheld;

43. Determination of employer for the purpose of this Act.