Regarding getting relieving documents

rocky (Querist) 12 October 2016 This query is : Resolved
Hi Team,

I was working with XYZ IT company from last 1.4 years, I resigned in august and company was having pollicy of serving 3 months of notice period. after serving notice period of 1 months due to some personal family problems I requested either to grant leave of 30 days or release me early.

so they allowed me to release early by buying out notice period so I paid the notice period amount by cheque and they encashed it andd gave me my full and final settlement document.
but now after 1 month they are denying to issue my releiving documents as recently I have joined a another IT compny to survive myself as I was not part of previous organization.

I have documnet prrof about check getting encashed and email confirmation from them of accepting the cheque.

now the people from previous organization are harrasing me that I lied to get early release and threatning me of legal notice and bad background verification comments

Please advice me how should I proceed further as I need my releiving documents because If I fail to submit those in current organization I can get terminated from current organization.

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Kumar Doab (Expert) 12 October 2016
You have posted that:

----"now the people from previous organization are harrasing me that I lied to get early release and threatning me of legal notice and bad background verification comments"

Are these threats on record; by written communication and /or audio/visual/witnessed/minuted?

----"final settlement document.
but now after 1 month they are denying to issue my releiving documents as recently I have joined a another IT compny to survive myself as I was not part of previous organization."

Is this declinature on record;by written communication and /or audio/visual/witnessed/minuted?

----"I need my releiving documents because If I fail to submit those in current organization I can get terminated from current organization. "

Is this condition of termination on record:by written communication and /or audio/visual/witnessed/minuted?

Kumar Doab (Expert) 12 October 2016
The notice period of 90 days may not be necessarily applicable in your case.

The notice period/pay is part of service conditions that are governed by various enactments and if you are covered, then these shall prevail upon any private agreement/rule/policy drafted by employer and signed with employee e.g; appointment letter/Service Rules/HR policy/employ handbook/contract of employment etc etc……………

Kumar Doab (Expert) 12 October 2016
While posting such queries employee should post:

What is this establishment; Commercial, Industrial? ( Noted; XYZ IT company)

What is its line of business? ( Noted; XYZ IT company)

How many persons are employed in it?

Does standing order apply in your case; Model/Standing?

What was your designation and nature of duties?

Do you have any power to sanction (Not just recommend) leave/increment/appoint/terminate/appraise/grant OT etc etc…………..

Can anyone change/cancel your recommendations?

How many persons report to you?

You are in which state?
Your service is under probation or confirmed?

For how many months you have been working? (Noted; 16 months)

Are you a member of any employee’s/trade unions?

Who is threatening you in Past and current establishment; HR personnel/Line Managers/Employer itself?

rocky (Querist) 12 October 2016
Let me come with some facts which you asked,

Organization is IT service company
it has around strength of 300 employees in pune
my designation was software engineer

Do you have any power to sanction (Not just recommend) leave/increment/appoint/terminate/appraise/grant OT etc etc………….-->.Not at all

Can anyone change/cancel your recommendations?-->dont know

How many persons report to you?-->no one was reporting to me I was contributing to the work

You are in which state?-->maharashtra
Your service is under probation or confirmed (Noted; under probation)?-->I was a permanent employee

For how many months you have been working? (Noted; 16 months) yes 16 months

Are you a member of any employee’s/trade unions?-->no

Who is threatening you in Past and current establishment; HR personnel/Line Managers/Employer itself?
I am currently getting threatned by previous employer in written format like I have a email reply from employer for my request of providing my releiving documents and I have signed a self declaration ddocuments to provide relieving documents from previous organization

Adv. Yogen Kakade (Expert) 12 October 2016
Please provide the details as guided by mr. doab

Rajendra K Goyal (Expert) 12 October 2016
You can proceed as advised by the expert Kumar Doab, expert in such matters, in case of any problem, send a personal message to him.

For personal message click his name on left side, profile would open, click PM and on opening write message.

rocky (Querist) 12 October 2016
Addition to above following are the things that I would like to elaborate so it will help you to understand my case,

I got appointed to organization on 11 may 2015 as per the appointment letter which says "Services are liable for termination by either party giving three months notice in writing or payment of three months basic salary"-->appointment letter as a proof

Later on 11 August 2016 I resigned by dropping a email to HR person
after one week through an email I requested them to release me early on 31st August 2016 by allowing me to buy out notice period remaining days which in response they denied by stating you need to serve whole 3 months and management is not allowing you release early from your duties and responsibilities anddenied my buyout request.-->proof email conversation

All above communication is written email I have document proof of that.

later on 12th September I wrote a email requesting either grant me a leave of 30 days to sort my personal issues or release me early then on that replied to pay the notice period amount so that you will get your proper releiving documents-->proof email conversation

So in the next weeek like on 20th September through cheque I have paid notice period amount for my remaining days this is also I have in written mail and they have acknowledged the same. employer had cached the cheque on next day 21st Sepetember.proof-->email conversation and bank statment

on 23rd I took a confirmation through written email from HR about my last working date and when I am going to get my releiving documents on this HR replied that you will get it once full and final settlement is done i.e 1st week of october.proof-->email convesation

hence forward at the end of month 30th September I received full and final settlement document from thier finance team on that it clearly states about my joining date as 11 may 2015 and last working day as 9th september 2016.proof-->a full n final settlement documents received over email

Due to some financial issues I have to grab a job and I joined another IT service company on 3rd October 2016. in which they have taken undertaking from me that I will provide my releiving documnets within 1 month of service and faillure on submission of these documents will lead to termination of your employment

my previous employuer got to know from BGV team on 5th OCT about me getting employed and then they dropped an email stating you have lied/faked about your personal issues for getting early release.

later on I contacted and replied to email stating my reasons of bankruptcy and heavy rainfall and flooding which leaded towards damages to my family source of income so I grabbed a job.

after that previous HR replied stating come and collect the cheque/amount which I paid against notice period buyout.

so I replied stating request to please provide my releiving documents but later on employer/owner threatned me over the email that take this matter to legal attorny as I have lied and file a police complaint if necessary and dont allow him in office premises in future-->proof email conversation

so pelase advise how should I proceed further,

Kumar Doab (Expert) 12 October 2016
Ref;Your 2nd post.

If you are not member of IT /ITeS employee's unions, it is your loss. These unions have done good job. Shiv Sena had floated a separate wing for IT /ITeS employees.

You can resolve the matter by your own skills or with support from IT /ITeS employee's unions that have affiliated with trade unions, Trade Unions, Officials in Dept. of Labor of your state, a very able counsel specializing in Labor Law /service matters.

You have not replied on point raised about::: Standing Orders.

OR has the state granted exemption to the trade/establishment?

It is imp. So either confirm or recheck and confirm.

You may reply to all points, pointwise.

Kumar Doab (Expert) 12 October 2016
IT /ITeS employee's unions, employee's unions,trade unions, Officials in Dept. of Labor of your state, a very able counsel specializing in Labor Law /service matters, all can share publications establishing that ...................

---Labor courts/Tribunals have accepted software professionals as ' Workman' as in ID Act.

---ID Act does not lay down notice period on employee, covered by the def. of ‘Workman’, as in the Act.

Kumar Doab (Expert) 12 October 2016
>>> IT/ITeS companies are covered by the Shops & Establishments Act, that was enacted to govern the service conditions of employees working in establishments covered by the Act.

Employers have to comply with Shops & Establishments Act, Shops & Establishments Rules.

Bombay Shops & Establishments Act and Bombay Shops & Establishments Rules is so employee friendly.

You should be covered by the def. of ; Employee' as in:

Bombay Shops & Establishments Act

http://www.sharpfacility.com/Labour%20Laws/General/BARE%20ACT/Shop%20and%20Establishment.pdf

Section 66: Notice of termination of service
No employer shall dispense with the services of an employee who has been in his [continuous employment] -
a) for not less than a year, without giving such person at least thirty days notice in writing, or wages in lieu of such
notice:

Bombay Shops & Establishments Act; Sec; 66; does not lay down (verbatim) any notice period/pay for employee. It lays down notice period and notice pay in lieu of notice period for employer.

For service period of 16 months (as in your case)::: notice period (for employer) is =30days.

Even if equitable discretion is appealed/prayed:::: and applied:::even then:::: notice period/pay, service period of of 16 months (as in your case)::: notice period (for employer) is =30days.

>>> You have not replied on point raised about::: Standing Orders.

Kumar Doab (Expert) 12 October 2016
Has previous employer supplied salary slip of each month, Form16 of each year,PF a/c number and a/c statement of each year,ESIC card, acknowledgment and acceptance of notice of resignation, Correct FnF statement showing computation of earned wages/adjustment of notice pay/leave encashment/bonus/OT/reimbursements etc, Form16 of last year as per Correct FnF statement, service certificate, acknowledgment of handover of charge/assets, NOC/NDC, Exit form................?

Confirm, for each item!

If NO: demand it in writing under proper acknowledgment from designated official say;HR personnel and/or good offices of appointing authority,MD etc.

These docs can suffice to be as good as relieving without any pend-ency at employee's end.

rocky (Querist) 12 October 2016
Has previous employer supplied salary slip of each month,-->Yes I have
Form16 of each year-->Yes I have,
PF a/c number -->Yes I have
a/c statement of each year--Yes I have,
ESIC card acknowledgment-->this I don't have
acceptance of notice of resignation-->its there but on their mail server
Correct FnF statement showing computation of earned wages/adjustment of notice pay/leave --> Yes I have
encashment/bonus/OT/reimbursements etc,-->last three are not applicable
Form16 of last year as per Correct FnF statement, service certificate-->no service certificate,
acknowledgment of handover of charge/assets,-->yes I have in form of mail
NOC/NDC-->no dont have any

If my current employer tries to do background verification on the basis of FnF statement can my previous employer declare me as absconded or terminated.

In short can employer have rights to terminate employee after resignation.

rocky (Querist) 12 October 2016
What does mean by Standing Order you have refered to answer in second last post

Kumar Doab (Expert) 12 October 2016
You have posted that:

>>>"I got appointed to organization on 11 may 2015 as per the appointment letter which says "Services are liable for termination by either party giving three months notice in writing or payment of three months basic salary"-->appointment letter as a proof"

Employer has crafted the private agreement/appointment letter and signed with employee.

The appointment letter provides for notice pay in lieu of notice period.

Employee can thus resign with immediate effect and tender notice pay in lieu of notice period.

NO permission or acceptance is warranted.

>>> "later on 12th September I wrote a email requesting either grant me a leave of 30 days to sort my personal issues or release me early then on that replied to pay the notice period amount so that you will get your proper releiving documents-->proof email conversation

So in the next weeek like on 20th September through cheque I have paid notice period amount for my remaining days this is also I have in written mail and they have acknowledged the same. employer had cached the cheque on next day 21st Sepetember.proof-->email conversation and bank statment

on 23rd I took a confirmation through written email from HR about my last working date and when I am going to get my releiving documents on this HR replied that you will get it once full and final settlement is done i.e 1st week of october.proof-->email convesation

hence forward at the end of month 30th September I received full and final settlement document from thier finance team on that it clearly states about my joining date as 11 may 2015 and last working day as 9th september 2016.proof-->a full n final settlement documents received over email"

Employee can apply for leave in notice period.

At least I am not aware of any law that prohibits, leave during notice period.

Employer has declined leave and pressed to tender notice pay in lieu of notice period that employee has complied.

Rest is drama and tantrums by HR personnel.

Employer has committed to issue relieving documents and has committed a cut off date for it, after payment of notice pay by employee, and has even released FnF statement.

Rest is drama and tantrums by HR personnel.

It is obligation of designated employee of employer say HR personnel or employer itself, to issue Exit Form for exit formalities/handover etc if any or if any is required, from employee.

If nothing of this kind is issued to employee then it implies nothing is required from employee and hence nothing is pending at the end of employee.

Kumar Doab (Expert) 12 October 2016
Hope you shall take all post positively.

These are for your benefit.

You have committed the same error that majority of the employees commit.

You were not member of IT/ITeS employee's unions, and employee's unions, Trade Unions and are ill informed.

You are entangled with HR and they are enjoying the show.

Cases like you are an opportunity for personnel in HR/Line Management/Legal cell: TO MAKE SOME REPUTATION FOR THEMSELVES.

Your unison would have supported you in your matter.

Kumar Doab (Expert) 12 October 2016
You have posted that;

---"Correct FnF statement showing computation of earned wages/adjustment of notice pay/leave --> Yes I have '

Does this FnF statement show adjustment of notice pay and records payment of notice pay by you?

Has the FnF amount been reduced by notice pay recovered from you?

Confirm!

---"Form16 of each year-->Yes I have,"

Has the Form16 been issued as per final amount after reduction of notice pay recovered from you?

---"ESIC card acknowledgment-->this I don't have..................."

"encashment/bonus/OT/reimbursements etc,-->last three are not applicable"

What is salary/month?

---"acceptance of notice of resignation-->its there but on their mail server'

Do you have copy or not?

Demand this and all documents narrated above in previous posts on letterhead/prescribed stationary with seal and signature, also.

---"service certificate-->no service certificate,'

Why; NO service certificate.

Model Standing Orders provide for it.

Standing orders provide for service card.

---"If my current employer tries to do background verification on the basis of FnF statement can my previous employer declare me as absconded or terminated.

In short can employer have rights to terminate employee after resignation.'

Absconder is derogatory word.

The employee notified the employer: to severe the employer-employee relationship, the moment employee has issued the notice of resignation.

The employee has severed the employer-employee relationship, the moment employee has issued the resignation (final).

Resignation can be without notice/permission.

In your case; the employer has duly acknowledged/accepted the notice and resignation and has demanded/collected/accepted notice pay in lieu of notice period.

The employer-employee relationship has already been severed.

How can employer now issue a speaking termination order?

Have you been threatened with ;adverse comments in BGV, termination,false charge of abscondment/absenting/abstaining?

Do you have copy of BGV?; If NO obtain it.

Kumar Doab (Expert) 12 October 2016
You have posted that;

>>> "my previous employuer got to know from BGV team on 5th OCT about me getting employed and then they dropped an email stating you have lied/faked about your personal issues for getting early release.

later on I contacted and replied to email stating my reasons of bankruptcy and heavy rainfall and flooding which leaded towards damages to my family source of income so I grabbed a job.

after that previous HR replied stating come and collect the cheque/amount which I paid against notice period buyout.

so I replied stating request to please provide my releiving documents but later on employer/owner threatned me over the email that take this matter to legal attorny as I have lied and file a police complaint if necessary and dont allow him in office premises in future-->proof email conversation"

This; threats may rather go against employer.

However on which date you have joined current employer?

05th October,2016?:If yes: ask to enter 05th October,2016 in FnF as LWD.

Or 11th October,2016?

Get the LWD corrected (later).
The employer has to pay earned wages till LWD.

>>> "Who is threatening you in Past and current establishment; HR personnel/Line Managers/Employer itself?
I am currently getting threatned by previous employer in written format like I have a email reply from employer for my request of providing my releiving documents and I have signed a self declaration ddocuments to provide relieving documents from previous organization'

Has current employer specified any document by name under title of 'relieving documents'?

Say; Service Certificate, Relieving letter etc?

Salary slip of each month, Form16 of each year,PF a/c number and a/c statement of each year,ESIC card, acknowledgment and acceptance of notice of resignation, Correct FnF statement showing DOJ/LWD, Form16 of last year, service certificate, acknowledgment of handover of charge/assets, NOC/NDC, Exit form etc etc are all relieving documents.

Submit all of these against proper acknowledgment to current employer.

Caution past employer to withdraw its threats and false and fabricated allegations (in writing by employer).

Kumar Doab (Expert) 12 October 2016
>>> Standing Orders; Model/Certified:

Check with IT/ITES/Trade unions, Certifying Officer that is usually DLC in Dept. of Labor, Inspector appointed under Bombay Shops & Establishments Act, a very able counsel specializing in Labor Law /service matters at your location.

>>> Don't remain entangled with HR personnel or line managers.

Escalate to good offices of appointing authority, MD etc.

If GRC (Grievance Redressal Committee), Works Committee exists, try with them.

Many state govt have notified that each company shall have GRC.

>>> Relieving; Reliving letter signifies; employee has resigned and nothing is due against employee.

Nothing is pending against you.

Kumar Doab (Expert) 12 October 2016
Many employees can resolve their matters by their own skills.

Or employee may lean employee's unions, a very able counsel specializing in labor/service matters.

You may go thru;

http://www.lawyersclubindia.com/experts/Employer-Harassment-on-Early-Relieving-618481.asp

http://www.lawyersclubindia.com/experts/notice-period-618086.asp

You may come back if you still have issues.

Rajendra K Goyal (Expert) 12 October 2016
Well advised, you can be benefited with the advise from expert Kumar Doab.

Kumar Doab (Expert) 12 October 2016
Expert Mr. Goyal,

Thanks for agreeing with me.

adv.bharat @ PUNE (Expert) 12 October 2016
Noting to be added since every thing is explined in detail by expert.

Ms.Usha Kapoor (Expert) 13 October 2016
Agree wi9th experts.

Kumar Doab (Expert) 13 October 2016
Thanks Expert Mr. Bharat,Ms. Usha Kapoor.

Kumar Doab (Expert) 13 October 2016
Author @ Rocky,
You may come back if you still have issues.

rocky (Querist) 13 October 2016
Thank you very mucch for all the help you have provided till this time

Kumar Doab (Expert) 13 October 2016
You are welcome.

Best Wishes.

Regarding getting relieving documents

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