Employer Not Releiving
Vineet
(Querist) 14 March 2009
This query is : Resolved
Dear sirs,
My name is Vineet and I am employed with a leading telecom MNC. I am a rehire here and joined it 10 months back.
I had myself applied for this job, considering the nice time and learning opportunity I had in its previous centre, and based upon my earlier performance, was offered.
But here I found situation to be much different and work culture diminished.Long hours, Back pain and red eyes became a regular problem.
Now I have got a job with another good firm and they want me to join as soon as possible.
1) I have 45 days notice period here and it is mentioned that I can pay salary in lieu of that if I do not wish to serve full notice period.
2) I gave them a 15 day notice period and sent my resignation through e-mail. But now my manager did not respond to this e-mail.
3) HR Manager and my manager both asked me to serve the full notice period. When I talked about buyout, they said "such a option does not exist", while it does exist as per my appointment letter.
4) They proposed to change me to a new project which is "supposed" to have a more work-life balance based working condition. But as I know that this project will also be managed by my current manager, who is, the only one responsible for spoiling culture of this company, I do not want to consider that.
Now as I have made up my mind to change company, ready to buy out notice period, does this company:
1) has legal rights to retain my experience letter?
2) has rights to not do my Full and Final settlement?
3) What legal action can I take against this company in case they do not give me my relieving cum experience letter and my dues?
The reason for not releasing me is said to be that they can not find a replacement of me and they do not have a mitigation plan.
But as this company has been unethical to by all means in my stay here, I do not wish to forfeit this good offer. Can they force me to stay legally on basis of such statements?
Please provide me you exper help. I am in urgent need of this.
Regards,
Vineet.
PALNITKAR V.V.
(Expert) 14 March 2009
Dear Friend, just go ahead and join the new assignment.You are not bonded labourer. You can buy out the notice period legally. If the company doesnt want that, it may go against the company. Legally, they can not retain your documents if you buy out the notice period by making payment as agreed. They have to settle the things fully and finally. Let them initiate any action. The only thing is that you should disclose all these facts to your new employer.
Vineet
(Querist) 14 March 2009
Thank you very much Palnitkar sir :)
I would definitely reach out to my new employer and explain them the situation.
But the exact clause given in my appointment letter is:
"Your employment with the company may be terminated by yourself or by the Company by giving in writing a minimum of forty five days notice or salary in lieu thereof. Notwithstanding, the above the company reserves the right to pay the equivalent of the prior notice period in lieu of notice and it is acknowledged and agreed in advance that this amount will be adequate compensation to you for the early termination of your employment. Further the company may accept or deny the receipt of salary from you in lieu of notice period depending on the criticality of the assignment/work etc., as deemed fit"
Does this not violate equal justice paradigm?
An employer can terminate employment by giving salary but has RIGHT to accept/deny the same when an employee wants to leave early?
Please suggest me what should I do.
Regards,
Vineet
Vineet
(Querist) 14 March 2009
Dear sirs,
Please help me resolve the above.
Regards,
Vineet
PALNITKAR V.V.
(Expert) 14 March 2009
Dear Vineet, I have replied it in response to your another query.
Vineet
(Querist) 14 March 2009
Thank you very much sir :)
M. PIRAVI PERUMAL
(Expert) 14 March 2009
I agree with Mr. Palnitkar. It is sad that many youths in the present unemployment scenario just sign in the dotted lines of unilateral contracts/agreements and the employers too misuse the trend and try to exploit the recruiters by getting them signed in agreement in favour of them viz. lopsided agreements with intention to treat them as slaves and bonded labours.
Vineet
(Querist) 15 March 2009
Dear Piravi Sir,
I understand your concern that guys like me have to sign this contract terms without completely understanding the hidden meaning of clauses.
Generally, in these foreign based MNC, they give an offer letter post selection which does not have such clauses. And at time of joining they provide with another detailed appointment letter, which has all such unilateral clauses.
One is given a mere 15-20 minutes to sign these contracts. As you aptly said, due to the unfortunate situation of job markets, an new employee can not risk his future by escalating a dispute at his/her first day in office :(
I believe, we should have more platforms like this magnificent site, where experts like you and Palnitkar sir, could guide the rat-race youth of today(It includes me for sure).And some regulatory body, which can review these T&C that employers like these put in black and white to only diminish hope in a embarrassed employees like me.
I would request you to please tell me the procedure to send legal notice/file a case with labor commissioner, in case, my employer does not wants to solve my case amicably.
I am glad that I could reach a site like this and feel much more empowered now.
Regards,
Vineet
PALNITKAR V.V.
(Expert) 16 March 2009
You simply write in the notice that you are ready and willing to pay the agreed sum for buying out time period of 45 days and also ask them to settle the things fully and finally without making any fuss. Also state that they can not compel you to serve their company against your wish and if they retain any of your documents including experience letter etc. that shall be unlawful. Also write that if they do anything against law and start any proceeding or if you are required to start any proceeding due to illegal acts of the company, the company will have to borne the costs and damages. Endorse a copy of the reply to the labour commissioner.
H. S. Thukral
(Expert) 16 March 2009
Leaving aside other aspects of case that an employer shall have to give an experience letter and settle the account of an outgoing employee, I would like to ask my ld. friends who have replied to this query that whether the term of contract which provides that an employee can not buy notice period is bad in law? An employee may be engaged in the job/project and abruptly leaving it may cause serious injury to the employer. A proscribing clause, essential to the interest of employer, whether would be unjust and against the Public Policy ? Please enlighten me. Thanks
Vineet
(Querist) 17 March 2009
Dear Harbhajan Sir,
I due agree with you that such a clause is benefecial for employer.But not necessarily lawful.
Consider the scenario when these companies layoff their employees giving a "15 minutes" notice period and some 1-2 months salary.Not only their personal life is shattered, but if such a situation comes in bad times like today, employee stands minimal chance to have a second job quickly.
If it is always "optional" for the employer to give a notice period to the employee instead of salary, I do not see a reason that it should be unlawful that an employee leaves the company without giving any notice period and just salary.
I have limited knowledge of legal methodologies in indian labor law, but if no law exists that may stop a employer of laying off its employees without any notice period,it should be equally justified for an employee to leave a company without any notice period.If former thinks that notice period money is enough for the damage caused to an employee, why should the employee not have right to do the same.
And beleive me sir, from my personal experience with my friends, it is much more damage that a sudden layoff causes on an employee not only in terms of money but also emotional, stress and insecurity related problems.
If such a law could be manifested that bars an employer from doing a sudden layoff and instead give "time" to an employee, in terms of notice period, it would be perfectly valid that notice period hs to be served by an employee as well.
But such a system does not exist in current scenario and employers at their will and wish layoff employess, giving absurd reasons like "cost-cutting", no time to recover or look for a second job, and 1-2 months salary which can not be compared to the loss that an employee bears.While if an employee wants to leave early, he is always forced to give notice period "time" instead of money, makes them afraid of things like experience certificate, and create panic about "business loss" which is never taken into consideration when they do a "mass layoff" !!
Regards,
Vineet.
H. S. Thukral
(Expert) 17 March 2009
I can understand your problem and feelings. I have spent a good period of my life fighting for workers' rights. The law does not see it from that angle. For your information, now a days when a worker is reinstated in service becasue the termination is held illegal he gets only a meagre compensation which is not even fraction of wages which he would have got if that employer had not indulged in highhandedness. No where it is pleaded before or considered by Hon'ble Courts that the illegal termination changed his life. He couldnot give proper education to his children, he could not marry off his children as per his wishes, domestic relations got shattered, the hunger, the unhappiness and worries, the unbearable mental tension, litigation he went through. Who was responsible for it ?
Courts see it as employers right to organise their business.
What I was discussing in my reply to your query is that you have been advised by my ld. friends that you have a good case in law. I had doubts and I wanted to clear them. This platform gives us opportunity to clear our doubts.
Manish Singh
(Expert) 18 March 2009
Dear Sir, i concur with your views and i know that you have a vast pool of knowledge in this field.
I am also of the opinion that the employee shall be bound to give either 45 days salary or a notice period in lieu thereof.
it can not be termed as against public policy but had he been asked to give notice of 5 or 6 months etc, that would have certainly been considered as against public policy.
