Employer not releasing relieving / fnf / dues
naveen lohia
(Querist) 29 April 2013
This query is : Resolved
I left my last company in 14th March 2013 after 3.5 yrs of service and duly giving a 1 months notice period.
My initial offer letter had mentioned a min 2 months notice period or base pay to be given if short notice period was server. I offered to abide by the same and during my notice period did my complete handover.
My immediate reporting boss approved of my resignation and had sought from the internal HR team to relieve me as per my request i.e. within 1 month.
The HR initially dilly-dallied on the notice period and 1 week prior to my last day in the company - asked me to extend my stay for another 15 days. I was unable to do the same as commitments were already done with my future company.
After all the handover, I left the co on 14th March 2013 and regularly followed up with the HR to provide me my releiving letter, work exp letter, FnF, and dues. The HR has not responded back even after 1.5 months and based on that I sent them a legal notice from a lawyer on 15th April.
The HR has not responded and I am still waiting for my dues
Please suggest as to what is to be done
Thanks
Vidhi Joshi
(Expert) 29 April 2013
send another reminder legal notice with cc to: regd office, all directors, HR and immediate manager...in no response don't hesitate moving to court.
naveen lohia
(Querist) 29 April 2013
Thanks, however this is just the tip of the iceberg
Once I resigned, there were some 6-7 more resignations from the company and all these people have been served a notice by the company (all served a short notice period and face a similar situation like mine) for abscondment from service and related termination with need for payment of short notice period amount.
All faced a similar pressure from the HR for non-release from service till they served a full notice period as mentioned in there offer letter and hence people had to stop coming to the office altogether.
In terms of labour laws - please do suggest if this is legal to enforce a notice period without putting a condition of payment in lieu of short period served even if its mentioned or ommitted from the offer letter
ajay sethi
(Expert) 29 April 2013
the terms of offer letter /appointment letter are sacrosanct . if appointment letter mention giving 1 month or 3 months notice period or salary in lie of notice period employer cannot unilaterally change the said terms without consent of employee
naveen lohia
(Querist) 29 April 2013
this has been done...
also current lot of employees being hired are forced to sign a 2 year bond
Kumar Doab
(Expert) 29 April 2013
The following is heartfelt opinion only and is not authoritative or commanding or a final advice and is not aimed to offend or argue.
The issue is not just relieving letter and in addition to it work exp letter/service certificate, FNF, and payment of dues, it is much more than that.
The options are clear: either all employees should accept the tantrums of the HR and their masters or come out clean from situation.
You may peruse the option whichever is suitable to you.
The thick skinned HR has forgotten what was taught in course for good HR practices while awarding degree in HR. This HR person has chosen to become executioner like a Hangman and murder the prospects of employee(s) who have served proper notice of resignation.
This HR person has conveniently forgotten ( to protect his salary) that he is duty bound to oppose the illegal, unlawful demands of his masters and stand up against illegal orders of his masters.
The conduct of the company and fate of the employees at the hands of such companies/personnel is perturbing.
Such employers believe that they shall become complacent without such policies.
All affected employee(s) should strongly defend themselves and refute the contentions of the company alleging that they have absconded !!!!!!
All employees should highlight that they have properly resigned by supplying one month long notice of resignation and serving the notice of resignation as per notice chosen to be given by employee. One month of notice is more than sufficient for the employer to put his house in order.
Is this company defending the borders of the nation that it has the powers vested in it like Supreme Commanders of the nation to decline to accept the resignation, order to be present on duty and declare employee a PO???????
These good for nothing armchair, HR and line managers have miserably failed to put a succession plan in place and are not able hence incompetent to come forward and perform the duty in case a vacancy arises. They are unable hence incompetent to run the show.
The effective leaders are not affected by attrition.
There are CEO's including in tech specific IT sector who preach and practice that an employee who has decided to leave should be relieved as ap and line managers, colleagues, and even CEO should share the work. They feel that thus they have a succession plan in place. The superiors are ought to do a better job than (outgoing) junior employee.
You may forward it to the arm chair ones and DAFFARS. {You may not find the literal meaning of DAFFARS in dictionary. You may have to ask around. If there is another suitable word kindly replace it.}
Employees need to muster some courage as their future, employ-ability; source of livelihood and career is at stake.
Abscondment is misconduct. It invites termination. In majority of the companies charge of abscondment is leveled to cause termination/to deny relieving letter as per some stupid policy of the company. Company must have inserted termination orders/ adverse comments in personnel files of all employees by now.
Abscondment may be defined: desertion as breach/repudiation of contract, or dismissal of employee by employee himself.
Employees should challenge it and charge these HR personnel by name.
The practices adopted by company and its HR is a global fad. However it is interesting to note that some states in advanced countries ( from which these HR person import the HR ideas) employees have right ( by statue) to access their personnel files, no later than 10 days after inclusion of a document in his or her personnel file..
All employees should demand in writing under acknowledgment that they should be allowed to examine their personnel files on a mutually convenient date and time. Let the company maintain a studied silence or deny, however thus let the personnel file become a case file/documents or record.
Employer has the option of adjusting notice pay in FNF statement/settlement or demanding it in writing to be paid in advance by cheque/DD, as per option of notice pay in lieu of notice period or shortfall in notice period.
Employees may take stand that the word is derogatory, damaging, and substantiate that these personnel are vindictive, zealous, adamant, and recalcitrant and have leveled fake, concocted, fictitious charges with malafide intentions to cause legal injury/inflict legal burden and professional harm. They are not fit to be left to loose around in a civilized society.
Although, these HR personnel/Line managers may have some nuisance value, they are not employer. You may be surprised to find in many companies many of these personnel draw wages less than those in Sales and other disciplines and are in fact at lower grade/rank. In many of the companies their job is nothing more than providing secretarial assistance to their masters.
Employees should not limit their representations to HR/Line management, especially in case like yours and your colleagues.
Employees should escalate to good office (for name sake) of the appointing authority, MD, Chairman, company secretary and grant them an opportunity to undo the damage which would be done to both employee and company in case of confrontation. If the good offices also do yield and provide relief, then employee should be quick to realize that they are hand in glove and he is left with no other option but to take legal recourse.
After all courts and state is Parens Patriae. {Courts and state is "Parent of the Nation”.}
Resignation can be without permission or notice.
“Does the clause on termination by company specify it shall be the choice of the employee to accept notice pay in lieu of notice period, if employer decided to initiate termination?”
Any policy in the larger interest and beneficial to both employer and the employee has the sanction of law as otherwise it will be easily termed as arbitrary.
If NO it would imply employer has the right to decline acceptance of notice pay in lieu of notice period while the employee does not have this right.
In addition to the Industrial Disputes Act, 1947, states also provide for compliance's under the Shops & Establishment Acts, Standard Standing Orders Act……. If the employee falls within the definition under these enactments, then he would be protected, up to that extent.
You have posted that:
------“ My initial offer letter had mentioned a min 2 months notice period or base pay to be given if short notice period was server.”
Do you mean that later the notice period was changed? If it was changed and accepted by you then new notice period should be the notice period applicable in your case.
The notice period is stated in certified standing orders of the company/model standing orders, Shops & Establishment Acts, appointment letter.
The service conditions as stated in standing orders shall prevail upon appointment letter. If notice period in standing orders is 7 days it shall remain 7 days even if company states it as 2 months in appointment letter. If standing orders are applicable to the company and are not certified model standing orders shall apply. Employer should display standing orders near entrance/on notice board and should supply certified copy to employee against nominal charge say Rs.10/-.
Standing Orders are applicable to companies to which Payment of Wages Act apply.
Shops & Establishment Acts of virtually all states limit the notice period to 7days/15days and max.1 month. Employee may claim that clause of notice period of 2 months in appointment letter is void to that extent. This enactment of state of Delhi has
30. Notice of Dismissal: COMMENTS
(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, 1954
(b) Notice or wages in lieu thereof under section 30—When to be given?
A plain reading of section 30 of the Act would make it clear that……………… the notice under sub- section (2) is for the benefit of the employer.
{Obviously the 2 month’s notice period is for the benefit of employer.}
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;
{You may approach the Inspector for relief.}
-----The designation alone does not decide employee is a workman or not.
Your lawyer may ask you a set of structured questions and may opine that you fall within the category of workman.
You may go thru the standing orders of the company/model standing orders:
13. Termination of employment:
.--(1) For terminating employment of a permanent ……. 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.
(2) No temporary …..and no probationer …. shall be entitled to any notice or pay in lieu thereof if his services are terminated
{Implies notice period is not applicable to probationer}
11. Payment of wages., 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.—
------THE PAYMENT OF WAGES ACT, 1936
{Applicable to all employees drawing wages up to Rs.18000/pm as per def. of wages in the Act}
2. Definitions:
3*[(vi) "wages" means…………..
(d) any sum which by reason of the termination of employment of the person employed
is payable under any law, contract or instrument which provides for the payment of such sum, whether with or without deductions, but does not provide for the time within which the payment is to be made;
5. Time of payment of wages.
You may approach a competent and experienced labor consultant/service lawyer as ap, show all documents, give in person and proceed under expert advice of your lawyer.
You may also approach some senior trade union leaders, community leaders also. They know the precise and effective ways to drill sense into the heads of such personnel and employers.
BOND: Your lawyer would know how to handle a BOND even if it’s James Bond.
In your kind of trade you may come across even worse personnel and employers.
Maintain access to a smart lawyer. Your lawyer would know how to defend you.
BE SMART.
Raj Kumar Makkad
(Expert) 02 May 2013
No more to add as you have already been adequately been advised.
naveen lohia
(Querist) 03 May 2013
Dear All
Thanks for the insights, however please suggest on
1. Are IT employees governed by standard Labour laws and Wages act. If not then what should be my next step
2. My previous company - is filing a legal suit against me and hence would request references to some good lawyers in Gurgaon, Haryana
3. What I understand is that - I will be subjected to a legal presentation by my previous company for
- Abscondment from job even though I did serve my 1 month notice period and also offered to pay for my short notice period. I do not have any liability from the co's end as all assets were returned and acknowledged by relevant teams. I also have done my entire handover of KRA to assigned teams.
- Joining a quasi-competition company. Even though I have not and neither would try to entice existing customers of the last company. Also the previous company too has hired people from competition at all levels.
I hope my case would be fluid
Please suggest
Kumar Doab
(Expert) 03 May 2013
1. Yes.
Designation alone does not decide employee is a workman or not.
2. If you wish to avail services of LCI lawyer you can conduct search at:
http://www.lawyersclubindia.com/lawyers_search/#.UYOE7qKAqWM
Mr. Makkad is from Haryana.
3. You had not mentioned in your post that your company is chasing you for joining a competitor and there is non compete, non solicitation clause in your appointment letter/service agreement.
Courts of law at India have delivered judgments declining to accept validity of non compete clause post termination of employment.
You have properly resigned and have handed over the charge as posted by you.
If company has issued any legal notice to which you have not replied so far, you may approach a competent and experienced labor consultant/service lawyer, and supply a fitting reply now and put the matter on a ‘Shut Up Mode’ now only.
All affected employees may join hands and approach a competent and experienced labor consultant/service lawyer, together, and charge the offender by name and chase them.
naveen lohia
(Querist) 06 May 2013
thanks all for the help and insights
I am surely more confident now
