The HR personnel at times litter nuisance and such personnel are not fit to be left to loose around in a civilized society.
The question arises that:::::WHY EMPLOYEES SUFFER???
It is as simple that employees:::: majority of them do not unite to form unions and do not affiliate with trade unions………………
Are you aware that ‘Works Committee’ as explained in ID Act is an authority::::::and President is from employees::: and it has to have equal number of members from employees:::: and that the employees can negotiate the service conditions!!!!!!!!!!
One should participate in activities and be member of unions from the student days and be properly informed.
1. The relieving letter too not just the FnF statement has to show the DOJ/DOL,designation,tenure of service,location etc........
It is believed that your company is a commercial establishment and standing orders (certified/model) might also be applicable and therefore should have displayed its registration certificate and standing orders at a conspicious place near entrance/on notice board...
You may download the:
---( Name of the state) Shops and Commercial Establishments Act, ( Name of the state) Shops and Commercial Establishments Rules
and both of these or either of these may lay down that employer has to maintain the various forms that record the DOJ,DOL etc e.g.
Tamilnadu Shops and Commercial Establishments Rules 1948:::::: FromN (service book) and FormE,F,G etc....
You can demand certified copy from your appointing authority/MD/Head-HR and also from Inspector appointed under ( Name of the state) Shops and Commercial Establishments Act in person or thru RTI........
DOL or last working day is the last working day and nothing else.
---certified/model standing orders of your last employer that should have been displayed on notice board and circulated to employees................
Your company might have kept a copy at HR portal accessible to employees...........
If standing orders are applicable but not certified then Model Standing Orders shall apply.......
The employer has to provide a copy of the standing orders to employee even if against a reasonable amount say Rs.10/-----
Employee or any one can obtain certified copy of the standing orders (certified/model) from certifying officer (CO) against a nominal cost say Rs3/page.CO might be the DLC in o/o Labor Commissioner at location of Redg. Office of the company.
The Model Standing Orders that is a statue lay down that 'Service Certificate' has to be issued to all employees on last day in office.......................you may go thru Sec13-19 for your matter……
You can also demand to supply you the certified copy of the 'Service Card' as explained in Industrial Employment Standing Orders Act...............that every establishment has to maintain....................For the application of standing orders a company need not be a Factory alone.....
Your company may scream that you are not covered by the definition of ‘Employee’ as in
( Name of the state) Shops and Commercial Establishments Act {{{WHAT ELSE IT CAN DO}}} AND as ‘Workman’ as in ID Act…………………..however your able labor law consultant/service lawyer may ask you a set of structured questions and may opine that you are covered………………
2. In your case apparently the HR personnel has kept relieving date after 90 days of notice period from date of notice of resignation.......................just to show as per his/her own wisdom the justification for levying notice pay as penalty......................and has adjusted notice pay in FnF statement.
However since you did not work till expiry of 90 days notice period inserted by employer in your service conditions ( appointment letter, HR policy, Service Rules and Regulations) hence the HR personnel who is attorney of the employer to prepare FnF statement inserted and computed adjustment of Notice Pay in lieu of notice period as a penalty in FnF statement……………….
(i) On which date you received the FnF statement and on which date you paid the (Final) amounts payable by you as per FnF statement……………………if after computing earned wages/bonus/LTA/EL etc and notice pay something was to be paid by you?
(ii) Of if after computing earned wages/bonus/LTA/EL etc and notice pay something was to be paid to you by the company then when was it paid to you?
Was this date ………………….the relieving date issued to you??????
DOL or last working day is the last working day and nothing else.
3. His action has resulted in expected loss of current employment and the onus is on him to explain it in writing........................that you are not to be assumed in parallel employment after the close of office hours on dated......................(your last day/date in office)..................since you were out of the employment of M/s...............................address(as on your appointment letter).....................from the close of office hours on dated......................
Your lawyer may opine that you can lodge a criminal complaint too.
Falsification of record is an offense and Shops &Estb.Act also has a clause on it.
Has the HR personnel declined to correct in writing?
Have you represented in writing under proper acknowledgment recorded the declinature (audio/Visual/witnessed)?
4. If the Relieving letter is prepared by attorney of the employer in HR personnel and if it is erroneous then it has to be corrected by employer himself if HR personnel does not do the correction……………..
Hence you may notice the good offices of appointing authority/MD in writing under proper acknowledgment.
The HR personnel might be liable for the penultimate action by employer hence he may not agree………………therefore you may exhaust the internal option of approaching the good offices and set a deadline (as suitable to you) for supplying the corrected Relieving letter to you by Redg. Post .
Hope you had handed over the charge/assets/company property before your last date in office and company had agreed on notice pay in lieu of notice period …………………in writing ……………….on record.
If yes your last working day was settled in concurrence with employer and employer must have prepared well in advance to complete the exit formalities so as to handover the FnF statement,FnF wages,service certificate, acceptance of resignation, last salary slip,PF number and a/c slips,ESIC card,Form16,NOC/NDC to you by the close of office hours….
Moreover if you affirmed in writing to adjust notice pay in lieu of notice period then it is matter of record and employer was duty bound to complete all formalities by that day and relieve you on that day.
You may note that notice period tendered by employee can not be preponed or postponed by employer and there are many judgments delvivered by Supreme Court of India.
How can you be relieved on dated…………………other than your last date in office?
5. You need to charge this good for nothing BGV agency employed by your current employer and your current employer too for leveling a false allegation on you.
How do you know that the BGV agency (may be even owned by the current employer) has indeed conducted a proper check?
If you wish prior to that you must explain in writing under proper acknowledgment to the HR personnel/HR head/appointing authority/MD of your current employer the precise meaning of dates mentioned in FnF statement issued to you and that the certified copy of the BGV report be supplied to you……………………….since it is false…………….and written statement of your past employer stating that you worked in their employment after dated…………………..(your last date in office) , so that you can take up the matter accordingly in writing substantiated by published documents on record…..
You must deny that you were in dual employment and declare it a FALSE CHARGE ON YOU!!!!!
6. The notice period of 90 days may not necessarily be applicable on you.
Notice Period/pay is part of service conditions.
Your able labor law consultant/service lawyer may ask you a set of structured questions and may opine that you are covered……………… by the definition of ‘Employee’ as in
( Name of the state) Shops and Commercial Establishments Act ………………..‘Workman’ as in ID Act and Model Standing Orders…………………
( Name of the state) Shops and Commercial Establishments Act was enacted to govern the service conditions of employees working in establishments that are covered by this Act……………………and notice period and pay is governed by this Act………….and notice period is as per length of service and is not more than 30 days………..
Standing Orders (certified/Model) : The notice period during probation period is NIL and 30 days after confirmation of service.
( Name of the state) Shops and Commercial Establishments Act, Standing Orders (certified/Model) being an Act, instrument of law, statue shall prevail upon any private agreement drafted/crafted by employer and signed with employee e.g. appointment letter,HR policy etc…………………and any service condition that is inconsistent with these shall not survive….
The labor Inspector shall not and can not accept notice period of 90 days if you are covered by these enactments…..
You may also check and relate the rate of notice pay applied by the company…..
Hence if company has committed transgression, illegality you can contest and claim refund of notice pay too………………..!
If you are unable to handle the matter on your known entrust it to your able Labor Law Consultant/Service matters lawyer…
