Forcing continuation of employment
Sharma
(Querist) 11 December 2014
This query is : Resolved
I've only been 2 and 1/2 months into my 6 months probationary period and i gave a resignation. There was nothing regarding resignation notice period written in the offer letter which I have. I said I would give a notice of 1 month from the date of resignation. The HR after many mails from my side responded saying that the notice period according to the management is 3 months and they would relieve me only after 3 months and that to at discretion of the management. He then pointed to some HR-document that stated this fact which I had no idea of. When I said it is not written in the offer letter the HR said that the rule in the offer letter which says you shall be governed by the company laws applies.
First of all i find this unethical. This way you can put in and change any law and does it then suddenly apply to me?
That document also states that I can pay my basic salary in lieu of the notice period. But then again as everywhere in the company document it says this is only at management's discretion. I still said that 1 month is a sufficient notice period considering I resigned merely 2 and 1/2 mths into the job and still am willing to pay 60 days basic salary. HR still did not agree saying that it will not accept my basic and will not provide any relieving until 90 days that too at management's discretion.
I feel mentally harassed by this as I am unwilling to continue to work at all here. Is management's discretion so powerful that I am force to labor even if i dont want to ? After all probationary period is to gauge suitability by both parties right ?
Kirti Kar Tripathi
(Expert) 12 December 2014
No body can compel an employee to work under him. In case, the employee tenders his resignation or leaves his job for any reason whatsoever, the employer has remedy to take legal action claiming monetarily benefits. it is settled position of law contract of can not be specifically enforced under the law. so for as providing of releaving letter is concerned the employer may give or not, you can not compel. however, if the employee leavs his job under the contract, he may ask for releaving letter and can also take legal action in civil court.
ajay sethi
(Expert) 12 December 2014
leave the organisation after one month . you have not signed any contract which requires you to serve for 3 months .
Sunil S Nair
(Expert) 12 December 2014
Best advise by above expert but like to add that taking course of legal action may cause harm in future employment try to amicably resolve this situation or send a legal notice stating all your needs.
Sharma
(Querist) 12 December 2014
Thank you esteemed sirs.
What about the part of the offer letter which states that "you shall be governed by company rules as applicable to you from time to time." This is like an all encompassing clause, everything can be covered under this by the company.
The only thing written about resignation is: "In scenario of you deciding to leave the company before 1 year of service you are expected to pay back the expenses incurred on you during the tenure like relocation charges, training, LTA and Medical Benifits etc."
Again the "etc" part is very vague and all encompassing. I've not claimed LTA, training or relocation. I don't know what is meant by Medical Benifits (is it the Medical reimbursement provided by the govt. Rs 1250/mth ? But that is a part of my salary). But again "etc" can mean anything, maybe entire ctc.
Rajendra K Goyal
(Expert) 12 December 2014
Whether any training given or relocation was paid? If not you may leave the company as advised by the expert ajay sethi ji, let the company claim through court.
Devajyoti Barman
(Expert) 13 December 2014
Compensation clause is vague and prone to confusion.
Anyway the employee during 1 st year is liable for compensation if he quits the organisation but not if he did not receive any special training for which the company had to incur great expenses.
malipeddi jaggarao
(Expert) 13 December 2014
You are probation. You have served one month notice. You have not signed any bond. No training expenses incurred on you and no medical expenses are reimbursed to you. Handover the belongings of the company with you to HR on lapse of one month and leave the company. They cannot do anything except not releasing the relieving certificate/not giving experience certificate.
Kumar Doab
(Expert) 14 December 2014
What is issued to you: Offer letter or Appointment Letter?
HR is not your employer and is just another employee like You in company.
You may submit your representation addressed to good offices of appointing authority, MD in writingng under proper acknowledgement narrating all previous representation mentiontioning brief minutes of discussion.....
You must mention that NO Tasks are pending at your end and to whom you should handover the charge against acknowledgement on the spot and routine duties be assigned that can be completed on daily basis within and upto last day in office I.e dated......and highlight your contribution, appreciations etc and that you have never given any opportunity to anyone to complain ....and have displayed highest level of discipline, integrity..... and have displayed character by offering 30 days notice period although it is not mentioned in offer letter dated....issued to you..and acknowledgement of resignation notice, acceptance, correct FnF statement showing adjustment of correct notice period/pay ,computation of EL/BONUS etc, payment of FnF wages,salary slips, PF number-a/c slips, ESIC CARD,FORM 16 as per correct FnF statement, NOC/NDC ,service certificate, relieving letter that is very much required for each employment by each employer including.... Name of your company.. from incoming employees, be issued and supplied to you within and upto last day in office...
1. Notice Period: Does the document state that acceptance of notice pay in lieu of notice period is at the discretion of employee if employer initiates termination?
The T&C of contract of employment should ideally be equitable.
Notice Period is part of service conditions and is governed by various enactment applicable to establishments and employee.......e.g. (Name of the state) Shops and Commercial Establishment Act, standing orders( certified/model). If standing orders are applicable to establishment but aren't certified then Model Standing Orders shall apply... and employer personally is held responsible for faithful observance of standing orders.
You may check if your company is an establishment covered by these enactments.....and you are covered by the def. Of 'employee' as in Shops and Commercial Establishment Act of your state and as 'workman' as in ID Act, and if standing orders are certified then if your designation is covered by certified standing orders...
The standing orders are certified on the lines of Model Standing Orders and employer should supply certified copy of standing orders even if against a nominal cost say Rs.10/.
Employee or anyone can obtain certified copy from CO (Certifying office) that may be DLC in o/o Labor Commissioner at the location of Redg.Office of the company.
You may demand in writing certified copy from HR-Head,MD and let them stated in writing it is displayed at.......or are not applicable...or are not certified... or won't be supplied .... or let them maintain studied silence... or that you are not covered...
No private agreement created by employer and signed with employee e.g. appointments letter /contract of employment /HR policy etc...can overrule an enactment/ statue/ instrument of law.....and any service conditions that is inconsistent with enactment shall not survive....
Your Labor Law Consultant/ Service matters lawyer may opine that you are covered by the provisions and def. of the enactments and these are applicable to establishment....
The service certificate has to be issued to all employees... and notice period during probation period is NIL.
The Shops and Commercial Establishment Act of your state may have condition that appointment letter should be issued to all employees and should state notice period....
Other also there is a clause on notice period that is equitable and notice period for 2.5 months of service is NIL...
2. Training: pertaining to the policies, products, strategy, etc....required to enable the employee to handle the counters of employee should be without any cost to employee.....
Hence if employer has not provided any certified training from some certified Instt that would add some qualifications , extra ordinary skills.... the training cost may not apply.
3. Relocation Expenses: If you were recruited from one location to be appointed at another location suitable to employer, as chosen by employer then you may not be liable to refund..
4. Medical Allowance/LTA : IF applicable may be paid on pro rated basis....
If you are unable to handle on your own entrust it to your lawyer.
Sharma
(Querist) 14 December 2014
Thank you all.
@Kumar Doab : Sir, that was a great piece of information - thank you.
Brief Background: I wanted to leave due to my parent's frail health. All my work so far in now 3 mths is thoroughly appreciated by the client in mail and verbally. When I wrote my resignation mail the first day itself the HR called me and said that he would find out which new company I'm going to and cancel it for me there. This was a threat and hence it made me determined to make my resignation irrevocable. 2 days later he also said that if there is verification ever he/organization would give very bad reviews about me. Actually they don't want to let me go because I'm good enough to be ordinarily replaced. This was the background.
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To answer your queries:
What is issued to you: Offer letter or Appointment Letter? --> Appointment Letter.
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Does the document state that acceptance of notice pay in lieu of notice period is at the discretion of employee if employer initiates termination? --> The appointment letter that I have signed does not say anything about the notice period or pay in lieu of notice. The HR says that the appointment letter says "you shall be governed by company rules as applicable to you from time to time." and the current rules are spread in some documents one of which says the following: "You are required to give 3 (Three) months notice of resignation in advance or pay in lieu of such
notice in case you want to leave would be at the discretion of the Company. All your salary dues
since your notice of resignation would be paid along with your final settlement. Final settlement
will be made upon clearance with respect to bills & investment proofs if applicable. All pending
dues will be adjusted against your final settlement. You shall be required to settle any excess
dues, which go beyond your final settlement amount at the time of leaving the services of the
Company, which will be communicated, to you, by Finance. You shall make payment to the
Company before you leave for any short fall in the notice period and/or it shall be adjusted
against the final settlement whichever is applicable. Relieving Order/Service Certificate will be
issued upon submission of duly filled No Dues Clearance Form on your last working day.
Either the Company or Employee may terminate the services by giving three months' notice or
three months' basic salary in lieu thereof, before or after confirmation. Accepting the basic salary
in lieu of the notice period shall be at the discretion of the Company. However the Company
shall not issue notice or pay salary in lieu thereof if the services of the employee is terminated on
the grounds of misconduct which will be ascertained only after giving the employee adequate
opportunity for justification. No such opportunity will be given if the employee is continuously
absent without any authorized leave on record for more than 8 working days. Appropriate legal
action will be initiated through Indian/Overseas Court of Law in case of failure to return any of
company’s property even after sufficient notice is served."
However my concern is that it's all encompassing to say you will be governed by rules without explicitly stating the rules in the appointment letter which I signed. Other documents like above can be produced whenever the company wants and write there whatever it wants. How is this ethical in law applicability?
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I have not taken any training, LTA, Medical Benifits or relocation charges from the company. I don't know what is covered under "etc" as I stated in my post before because "etc" is very vague term in English.
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All this while the communication is only through official mails. Though I make it a point to put mine and many others' personal gmail/yahoo etc mail id's in cc while replying the response from their side only comes to my official mail which they might manipulate in future in the server. I am not sure if mail conversations are legally binding.
Are mails enough or should I also send all my conversations through registered-post ? Even then they might claim that the registered-post was empty and I would be unable to prove that I wrote something inside.
Or would emails suffice?
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T. Kalaiselvan, Advocate
(Expert) 15 December 2014
Well advised by experts, you may follow the same for further reliefs.
