Such matters are best resolved by applying rapport, goodwill, persuasion, persistence, reasoning, and negotiation skills. Good offices of the employer should be approached and a fair opportunity be given to good offices to provide relief. Even while you are agitating remain amiable. Good offices should act fairly as parent and should adopt unbiased and reasonable approach and save the organization and employee from burden of litigation. If good offices also do not intervene and do not provide relief then legal route, lawful authority becomes an option.
You have posted that:
---“ I am working in ITCompany since last 5 year, now I have given my resignation two-month advance as per the appointment letter, when I was in Onsite assignment,”
The resignation while on “Onsite assignment,” is the bone of contention.
Has the company issued any acknowledgment to notice of resignation and its willingness to accept it in writing?
It is imp. to get and keep an acknowledgment.
The company shall always claim it has incurred expenses for sending the employee abroad and it has the right to set the conditions say time limit deemed fit and appropriate by it to get return on the expenses.
You may clarify the on assignment is by an order of transfer or deputation?
Did you submit a written request for this assignment or company has ordered it?
Did you sign any new T&C while being sent abroad? If yes do you have the copies?
If you do not have the copies submit a written representation to provide you the copies as ap.
These should be carefully studied.
Transfer and deputation are part of service conditions and as a condition in contract of employment company might have reserved the right to transfer or depute.
Thus it may not be appropriate to claim refund of expenses for relocation.
Service conditions are stated in standing orders of the company and appointment letter.
The service conditions in standing orders can not be negated in appointment letter.
You must obtain copy of certified standing orders of the company.
The standing orders should be displayed at notice board, near entrance and employer should provide copy of standing orders to employee against a nominal fee say Rs.10/.
Some states had granted blanket exemption to IT companies from the provisions of IESO Act.
The state of Karnataka was one of them and has now ended this exemption. All companies should frame their standing orders and get these certified within 6 months and till then model standing orders shall apply.
---“ since my marriage is finalized and immediately need relieving after completion of two months and by the time I will be back in my based location.”
“Since the situation is unavoidable, I am not in a position to change and decision and continue service for next 8 months.”
Would you like to apply in writing under proper acknowledgment, for a transfer back to Base Location citing the reasons e.g. Family Reasons/Marriage and let the company reply in writing.
---“ However, management relieve me in the condition that either I should continue service for another 8 months or ready to bear onsite travel expense, along with visa processing fee for B1, L1 ( company hasn’t taken and consent for processing L1) and notice period pay, which become heavy penalty for me,’
Has the management levied these conditions in writing? Your lawyer may opine that by levying such conditions company has unworthy of being employed with.
Has the management relieved you in writing? It is imp. to get reliving in writing and comply to exit justifiable exit formalities set out by company and obtain receipt.
If yes you have a document to refer and respond to, and you may demand the consent/agreement signed by you based on which these demands are being made.
“Company hasn’t taken and consent for processing L1”
Do you mean to state that you have not signed any agreement with the company to such an effect?
Usually companies mention in appointment letter that any T&C introduced by company from time to time shall be acceptable and applicable to employee, and company may cite from such clauses in appointment letter.
“and notice period pay”
Notice pay is to be paid by you if you do not tender and serve notice period.
“which become heavy penalty for me,’
‘
If the amounts demanded by company are not payable by you as per any contract/agreement signed by you with company you can express in writing under acknowledgment to good offices of your appointing authority, MD, Chairman, Company Secretary that it is not applicable and you are being unnecessarily being penalized, and request the good offices to provide certified copies of all documents to substantiate its demand.
Do not limit yourself to line management and HR alone….
You must build favorable record and maintain copies in your personal file.
You have to find your ways and means as any time company may block your official email id and later it may not provide any record to you and may not even bring it in court of law.
--“ I have not informed by the HR that about onsite policies.”
Remember what in all documents you had signed for this assignment?
Try and obtain HR policy manual for employees, On site policy, service manual, severance policy, exit policy which might be kept at HR page of employee portal.
If no such policy is ever circulated then you may state so in writing under acknowledgment.
Gossip and rumor can not be rules. Employer should not act as a magician and produce things from thin air.
---“ I have 5 year PF”
PF can not be attached. If you have completed 5 years of uninterrupted service you are eligible for Gratuity also.
However kindly ensure that while you are abroad the PF contribution of employee and employer is being paid by the company. You can also offer in writing to deduct PF for all months of service abroad and pay the contribution.
Has the company provided any social security to you while abroad? If yes it may argue that Gratuity is not payable.
Has the company mentioned Gratuity in CTC sheet and is the remuneration mentioned in appointment letter is by CTC/CTC sheet-annexure? If yes you may succeed to claim Gratuity.
---“ full and final settlement of one-month salary”
FNF wages should ideally be paid on regular pay day. Company might have expressed a period of say….30 days in its exit policy (Obtain copy). It may state so as well in acceptance of resignation or by a separate communication. However you should demand to state in writing by which date FNF shall be settled. You may sign acceptance of FNF only if it is correct. If it is not correct you must state in writing that it is not correct and you have not accepted it and FNF amounts sent by company are received under protest.
“IT return” : Company under legal obligation as deductor of tax to supply Form 16 for the amounts deducted as TDS, or it can be penalized. You may lodge a complaint with jurisdictional CIT-TDS where company files its return and IT office where you would file your return.
“relieving letter”: is issued post all settlements by employee e.g. handing over the charge/ company property.
In your notice of resignation/resignation or by a subsequent communication you may affirm that you are willing to transfer the knowledge, hand over the charge, company property to designate d employee within and up to your effective date of resignation/last day in office and company should inform you in writing about the designated employee, and the designated employee should handover the proper acknowledgment t you on the spot. Usually the designated employee is HOD/reporting authority. After handing over the charge there is nothing due at your end.
IESO Act/ Model Standing orders has a provision to supply the certificate / FNF wages on last day in office/within 2 days. The format does not have any column on conduct.
However companies devise ways and means to create their own format and add adverse comments. Hence remain amiable and careful to not let company charge you on any count or issue any stinker/notice/show cause notice and obtain reliving letter with good comments
(Avoid without any comments).
The next employer may employ you on the strength of copy of resignation letter, its POD, last salary slip and an indemnity/affidavit that you are not employed elsewhere. However you should appraise the next employer preferably in writing that your current employer may not issue acceptance, reliving letter…. And take them into confidence. You may need support if current employer plays foul…..
Designation alone does decide employee is a workman or not.
IT companies or for that matter majority of the company designate employees with fancy and flattering designations. Your lawyer may ask you a set of structured questions and may opine that you fall within the category of a workman. The labor laws applicable to a workman limit the choice to companies.
The IESO Act, Model Standing orders, SE Act, Payment of Wages Act, ID act might be available at Dep. Of Labor website of the state or can be purchased from market.
Model Standing Orders: 13. Termination of employment, 14. Disciplinary action for misconduct, 15. Complaints, 16. Certificate on termination of service, 17. Liability of 17[employer , 18. Exhibition of standing orders
SE Act e.g. SE Act Delhi:
19. TIME AND CONDITIONS OF PAYMENT OF WAGES.
21. CLAIMS RELATING TO WAGES.
35. Inspection of Registers and calling for information.
37. POWERS AND DUTIES OF INSPECTOR.
COMMENTS
(b) Duties of the Inspector :
(h) that the wages and other dues are being paid to employees in time as required under the Act;
(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;
41. WILFULLY MAKING FALSE ENTRIES
THE PAYMENT OF WAGES ACT, 1936
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;
It shall be appropriate to approach a competent and experienced labor consultant/service lawyer with copies of all documents and communications, give inputs in person and spend quality time with your lawyer and proceed under expert advice of your lawyer. Let your lawyer structure and draft your representations and build record in your favor.
The Labor Inspector may want to give notice and this may work in your favor and your payments may be released and the matter may end.
The company may relent and yield to your representation to good offices, demand notice, Notice by Wages Inspector, Inspector under SE Act, and legal notice by your lawyer.
The option to approach civil court is there too.
Valuable advice of learned experts/members is sought.
