Company not releasing from service and not giving documents
Hemant
(Querist) 30 December 2016
This query is : Resolved
Hello Sir,Madam,
This is Hemant here. My younger brother working as Software Engineer in Bhandup, Mumbai location. He wants to leave the current organisation and for same he had sent the resignation letter in October 2016. However the company told him that they do not have the notice period so he has to complete the project then company will release him. The employer had stopped his salary so my brother didn't went for a day and sent mail for salary and docs.
In reply to this employer sent the mail saying they will send the legal notice to my brother and they threaten him using CA and one other partner.
But then on 25 Nov 2016 they discussed and agreed that the project will be close by next month (Dec 2016) and post that he will get release. But the project has many dependencies on client side and technical front. So In last one month not much progress has happened.
Whenever my brother ask for project to move the employer says we will talk to client. But nothing happened.
My brother is going through stress due to this and want to get release. Can any one for you guide us on this.
Thanks,
Hemant.
Rajendra K Goyal
(Expert) 30 December 2016
There is no notice period, after resignation, there was no reason to rejoin.
He should submit reason and ask for the F & F and relieving letter.
Hemant
(Querist) 30 December 2016
@Rajendra Sir, Thanks for your reply.
But he was not giving the reliving letter and Salary. Anyways but how should we proceed from here. Because when ever my brother ask them for release they say to complete project and talk to client on dependencies.
adv.bharat @ PUNE
(Expert) 31 December 2016
As ur brother had resign no need to complete the project.
Rajendra K Goyal
(Expert) 31 December 2016
Is there any confirmation that after completion of the project they would show satisfaction and release all benefits. It seems position would not change, they would find fault.
If he has any job in hand, he should resign and join new job..
Hemant
(Querist) 31 December 2016
@Rajendra Sir, Yes he has job in hand the only concern is how to get docs from them. Because they are not ready to give and saying if he leave job without completing project they will send legal notice. Act, he has not signed anything or any bond. Even the offer letter doesnt have anything regarding notice period or any other clause.
Rajendra K Goyal
(Expert) 31 December 2016
I doubt they would give documents after completing the project, he should try to join without formal relieving letter and demand the documents F & F settlement.
Kumar Doab
(Expert) 31 December 2016
Employee has documented stoppage of salary,attendance, and documents subsequent to resignation.
Employer has replied by email which according to you is threat.
Probably employee has not replied to it.
There was a meeting.
Probably employee has not documented the minutes.He should have minuted the close of project by date................as decided by employer.
Employer must have inserted the minutes/notes/notings in its record thru other employees that participated in the meeting.
Show the emails to your own counsel specializing in Labor/service maters.
Preferably in consultation with your own counsel draft the reply to email and minutes of meeting.Here employee should carefully point the deficiencies by employer and for not getting the things done and closing the project by decided date......................and conclude that in the interim employee (upto decided date) employee has done everything, that was placed before him and download the evidence of everything.
Kumar Doab
(Expert) 31 December 2016
If there is NO notice period inserted by employer in appointment letter then employee can claim that there was NO Notice period agreement signed with him.If employer has on its own waived off the notice period requirement then it is employers will and employee can claim that during interview/joining it was decided by employer that as per its requirement and work to be done there is NO need of any notice period hence it was not inserted accordingly in appointment letter.
However you have not pointed out the extracts of appointment letter on completion of project and liability of employee to that extent if any in appointment letter..................and reference to any damages/loss due to employee, pointed in appointment letter.
The dependency on client,technology are not employee's control and are very well known to employer at the time of recruiting employee and later and also on the day employee resigned and meeting was held on dated....................with employee and a period of .............days.............was decided by employer with employee to complete the project.
You may respond if it is the same project,same client,same technology that was on day of recruitment and date of resignation, meeting,extended period and also : Has the employee pointed out the requirements, deficiencies of employer, that were not fulfilled by employer.
This is to fasten the claim on employer and defeat the claim of employer on employee.
Hemant
(Querist) 31 December 2016
@Kumar Sir,
1. Following are the contents of offer letter
Dear Amit,
With reference to your interview with us on October 17, 2015 we are pleased to offer you
an appointment in our organization as ‘Android Developer ’. You are requested to join us
latest by November 16, 2015 at our Mumbai Office.
You will be on probation for a period of 3 months .You will be paid a salary of Rs.
12,000/- (Rupees Twelve thousands only) per month during probation period. On
successful completion of probation period, you will get increment depending on your
performance during probation period.
Please sign a duplicate copy of this letter and return to us as a token of your acceptance.
We welcome you to XXX Technologies and look forward to a long and mutually
beneficial association.
Thanking you.
For XXX TECHNOLOGIES
It doesn't have anything.
Kumar Doab
(Expert) 31 December 2016
It is offer letter.
Was any appointment letter issued?
Has the employer provided any document on service rules say; Service Rules,HR policy for employees, employee hand book, Code of Standard policies,etc etc .................or placed at any shared, internal, portal?
You have not posted on other points e.g; email sent by employee, employer, printed version of minutes of meeting.......
Hemant
(Querist) 31 December 2016
Sir,
1. They have'nt given any other doc than this. No appointment letter. As this is small company there is no portal, HR, HR policies, hand book etc.
2. Email from employee: Dated : Nov 22, 2016
Dear Sir
As per our discussion you are not allowing me to leave by 25 of nov as per your and you partner commitment . you are breaking commitments and defining notice period as per your requirement.
As discussed, i will not be coming office from tomorrow due to following reasons:
1. I had already informed about my last day in company which was 25 nov 2016. This date was communicated and agreed by you as well. But you have refused to release me on said date.
2. You have not paid salary of last month - OCT 2016
3. You have refused to give me release documents
My two month salary is pending to you so i wanted the last month salary by tomorrow morning, and current month salary on or before 25. if you denies anything then i will have to take against you.
Also, As you seen and checked on my computer source code of all apps is available on my machine you tried to make backup of that source code and change the password of my account and you are also lying that you did not this.
3. Email from employer: Dated : Nov 23, 2016
Mr. Amit,
I have received your resignation letter, by concluding all those point you have mentioned is totally rubbish and there's no mean of any of the point you have mentioned.
During last couple of week we are observing your behavior, it's totally unprofessional approach filled with greediness. In fact, we haven't expected these things from your side.
I would like to clear you by your point to point.
1. In case of any releaving date, we won't have agreed on any date which you are mentioning i. e. 25th November. In fact we have communicated that you have to finish all the pending task which has been assigned to you by 30th of November but you suppose to fails into that. Due to this again we are offering you the same amount which your new employer is paying to you., that is 25k per month but you again refuse this. You should know that it's your duty to complete the task/project within the timelines.
2. Due to currency exchange we are facing the money deposit issue, which is not hide from you. We have not stoped your alone salary, in fact no employee had received the salary of OCT-16 month till date, we are trying everything to make it possible asap for every employee.
We are putting your salary on hold till you handover the project with 100% perfection. All work assigned to you is to perform not to play. We are expecting you to focus on your duties and invest your available time in your project completion rather than unwanted argument.
3. We are ready to provide the doc, whatever you wanted, but your greediness is coming in between. For some of your document, we are expecting only one thing ie. The task should be handover with cent of accuracy.
4. Including your account and machines, you should be aware that these are not your properties, so we don't require any of your permission to check it. These are companies property.
Due to negligence and immaturity of your behaviour towards the task/project, we have faced huge loss in our business.
Everytime we were including you and your views and demanding the timelines to complete the project, but you never achieved or completed any of the project within the given timeline. In result of this we have faced the deduction in the payment from clients.
We have already delayed a lot of project due to that we faced heavy loss in terms of financial as well as relationship with our clients.
I would like to strictly announce in your case, if you fails to deliver any of project with 100% accuracy within stipulated timeline, you may face legal notice from company.
Already we have tolerated and compromised a lot of things in your case but now it's enough.
Kumar Doab
(Expert) 31 December 2016
I was suspecting some charges and claims, loss by employer.
Now it is clear.
>>> Email from employee: Dated : Nov 22, 2016: Last para:"As you seen and checked on my computer source code............."
Relate with Point;4 Email from employer: Dated : Nov 23, 2016..............
Press that it implies nothing has been tempered by you and everything is handed over in proper order.
>>> Email from employer: Dated : Nov 23, 2016;
Demonetization does not limit payment of salary by Bank transfer in salary a/c , cheque/DD.............
1. Employer has expressed to increase salary and retain.
Was any task/timeliness communicated in writing on record?
If yes or (NO also) complete the tasks, if possible.
Or fasten the reasons on employer,and attempt to establish that till dated...........you have performed and worked on tasks with whatsoever was made available to you, and nothing is pending at your end.
Download everything while in employment.
Later you may not get anything.
Greediness is derogatory word.
Employee is clamoring to get payment of earned wages and it is not greediness.
What is this deduction from client?
Are you responsible for it?
The employer has declared to stop salary.
Facts are known to you and need to be explained by you.
Hemant
(Querist) 31 December 2016
1.Was any task/timeliness communicated in writing on record? -- Task must be on mails like the project details and all. But nothing related to timelines.
My brother is trying to complete task, but since last 10 dasy due to external dependencies the progress not happening on pending project so employer asking him to work on older projects.
2. What is this deduction from client? -- Do not know. Not sure even that has happened.
3. Are you responsible for it? -- Employer dont involve employee in any client contract so my brother must not be involved in any such discussion or mails. He is only part of development team. The employer saying this because my brother willing to left.
Even though project is not progressing employer blaming it to my brother.
Seeing all these, what do you suggest how should we proceed and is there any harm to my brother.
Kumar Doab
(Expert) 31 December 2016
You have not posted on other points e.g; printed version of minutes of meeting.................and reply by employee to email of employer.
During the work hours employee is at the discretion of employer and may be asked to work on old or new projects.
In your case download everything that you are asked to do on day to day basis and you have done on day to day basis.
Timeliness is between employer and client.
What is the timeliness between employer-employee? As per you;NONE. If You have done days honest job download evidence.
It can't be infinite.
Notice period is maximum and rest as agreed between employer-employee (You have not posted on printed version of minutes of meeting.................employer has already declined in its email posted by you).
If employer is unable to firm up and get the things done from its client employee should/cannot be faulted.
The employee has to point blank deny any deductions due to employee...............and press that it is for the first time employer has uttered/written such comment and more so after employee has been clamoring for his earned wages.
Is employer supplying salary slips every month (ask to supply these at once) showing no of days/OT/deduction for PF-ESIC, PF number and a/c slips of each year,ESIC card, Form16,.............
Hemant
(Querist) 31 December 2016
1. There was no MoM mail after discussion.
2. Employer has not given any salary slips till date, no PF as this is 5-6 members team.
3. Employee was not clamouring for salary but he was asking it.
Kumar Doab
(Expert) 31 December 2016
The notice period/pay is part of service conditions that are governed by various enactments that apply to establishment, employer,employee.
Software companies are governed by ( Name of the state) Shops and Establishments Act that was enacted to govern service conditions of employee working in establishments covered by the Act.
You might be covered by the def. of 'Employee' as per the Act i.e; The Bombay Shops and Establishments Act
Software Engineer has been accepted as covered by def. of 'Workman' as in ID Act.
There are many IT/ITeS employees unions that have also been embraced by Trade Unions.
State of Maharashtra also have coverage by enactment:
THE MAHARASHTRA RECOGNITION OF TRADE
UNIONS AND PREVENTION OF UNFAIR
LABOUR PRACTICES ACT, 1971.
http://bombayhighcourt.nic.in/libweb/acts/1972.01.pdf
You may go thru:
The Bombay Shops and Establishments Act;
Sec: 38-B,66
https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/94257/110577/F479460477/IND94257.pdf
The Bombay Shops and Establishments Act, ID Act doe not lay down any notice period for employee.
The Bombay Shops and Establishments Act; Sec;66 lay down notice period for EMPLOYER as per length of service of employee.
Thus you need to defeat the allegations of employer and fasten the liability on employer and conclude that you have co-operated and lapses if any are the end of employer.
Kumar Doab
(Expert) 31 December 2016
Employee should have and may submit MoM of the meeting, reply to email of employer.
Employee need to ask for salary slips, and salary of past months immediately and current month on due date .
Transact in writing.
Employer after resignation has started making allegations and did nothing like issuance of memo,SCN, inquiry, speaking order after inquiry etc etc............and as per your posts is leveling allegations on flimsy grounds, hearsay, gossip,rumor.
The allegations seem to be aimed at; squaring of the payment of earned wages with loss on flimsy grounds, to bind the employee and make the employee work @ NO WAGES, insert negative aspersions on employee and affect employ-ability.....
Employee can even lodge claim with Inspector appointed under:
Payment of Wages Act,
The Bombay Shops and Establishments Act,
O/o Labor commissioner..........
Hemant
(Querist) 31 December 2016
Kumar Sir,
Thank you for your suggestions. I will talk to my brother and ask him get it clear on mails. Otherwise as per your suggestion we can take some legal action..
Kumar Doab
(Expert) 31 December 2016
It is not necessary to write by email only. If some reply was sent by letter thru post copy of the same may be sent by email.
Build irrefutable written record and evidence since employer has leveled allegations on comiittement, sincerity, and and also of having caused loss............
These are to be met on facts and merits.
Kumar Doab
(Expert) 31 December 2016
While I was posting my last post you were also posting.
Avoid litigation as much as possible.
Download evidence of everything while in employment.
Build record to meet allegations on facts and merits.
Hope you can read between the lines.
Kumar Doab
(Expert) 31 December 2016
Support of next employer, line managers, HR etc is very imp.
Take them into confidence and communicate ( preferably in writing and under proper acknowledgment) that you have appraised them of the issues...............( notice of resignation, resignation, meeting with past employer M/s........postponement as per reasons............declinature of past employer to relieve, allegations, conflict between employer-client etc etc strictly as per the message in emails and facts ) and that you can produce only the copy of notice/final resignation and at the most proof of dispatch, delivery........................and can not submit anything else be it; acknowledgment and acceptance of notice/resignation by past employer, service certificate/relieving letter, NOC/NDC, FnF statement,salary slips, Form16 etc etc..................and you should therefore be absorbed in employment on the strength of copy of notice/final resignation and at the most proof of dispatch, delivery and your employment should not be terminated for the want of any other document.
Reply and resolve everything with past employer, on irrefutable record.
Tender resignation by letter thru Redg. Post and download tracking report from India Post website, obtain POD from PO, and certified copy of runs sheet of postman, and send copies by email also to past employer................
