Non settlement of f&f (service agreement)

You have posted that:

1. “I was working with a company located in Gurgaon and left the job on 9th of September 2015 after serving complete notice period due to unfair behaviour and mental harrassment by my manager for which I was not getting proper help from anywhere so decided to leave the company.”

Do you have any evidence of unfair behavior and mental harassment (audio/visual/witnessed/minuted)?

Did you mention this as a reason in notice of resignation/subsequent communications//resignation?

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

 

1. “I took my resination back one day before my last day but that request was also denied”

Did you withdraw the resignation in writing? Do you have proof of dispatch, delivery?

 

1. “But on my last day, they played a trick and denied to provide any extension to the notice period to complete the service period duration.’

Did you communicate about it in writing and do you have the copy?

 

1. “Now, I have become the victim of unfair behaviour of my employer as they are not providing me with the reliving letter and full and final settlement saying to pay the penalty under service agreement signed by me at the time of joining which was valid for one year. I had joined on 25th September 2014 and and there was only 16 days shortfall of my one year service agreement completion which was promised to waive off by my immediate manager during my notice period.”

The service agreement was created/drafted by employer in lieu of what extra ordinary favor by employer to you? Say some : certified class room training from some Instt. that added to your qualification? What was the expense incurred on the training?

Or it was just that you should feel obliged since you have been taken into employment?

Do you have evidence of waiver by Manager? Did you minute it in writing?

 

Whats is this establishment; Commercial,Industrial?

You are in which state?

The repoerting office is in which state?

The Redg. office is in which state?

What is your designation and nature of duties?

Do you have decision making powers e.g. appointment/termination/sanction (not just recommendation) of increment-leave etc?

Can your recommendations be cancelled by anyone above you?

Does the company have it certified standing order and does it cover your designation?  Or does Model Standing orders apply to it?

Do you its copy?

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

Have you consulted an able labor Law Consultant/Service Matters Lawyer/Law Firm specializing in Labor-service matters?

The query is also posted at:...............https://www.lawyersclubindia.com/forum/details.asp?mod_id=37393&offset=2#.Vh4_am5-jMp...................

Hi Kumar, Thanks for the such a quick response. Here is the answers for the questions you asked : You have posted that: “I was working with a company located in Gurgaon and left the job on 9th of September 2015 after serving complete notice period due to unfair behaviour and mental harrassment by my manager for which I was not getting proper help from anywhere so decided to leave the company.” Do you have any evidence of unfair behavior and mental harassment (audio/visual/witnessed/minuted)? Did you mention this as a reason in notice of resignation/subsequent communications//resignation? Are you a member of any employee’s/trade unions? Answer : No, I don't have any instance as of now as I have left the organization but yes, I had raised the matter to the HR in the month of Jan 2015 and told them to change my team. But that evidence is in company records. I didn't mention this as a reason in notice of resignation as I just wanted all things to be sorted out smoothly till my last day. And also I thought it is of no use as previous raised matter to the HR was closed without any solution when I had requested to change my team. But I had verbal conversations with HR during my notice period as well as with the other manager and I had told them the reason for my resignation. “I took my resignation back one day before my last day but that request was also denied” Did you withdraw the resignation in writing? Do you have proof of dispatch, delivery? Answer : Yes, I had withdrawn my resignation in writing and I do have the proof of it. I had forwarded all the evidences to my person email id on my last working day. “But on my last day, they played a trick and denied to provide any extension to the notice period to complete the service period duration.’ Did you communicate about it in writing and do you have the copy? Answer : Yes, the above discussion was done on the email and I do have that email as well. “Now, I have become the victim of unfair behaviour of my employer as they are not providing me with the reliving letter and full and final settlement saying to pay the penalty under service agreement signed by me at the time of joining which was valid for one year. I had joined on 25th September 2014 and and there was only 16 days shortfall of my one year service agreement completion which was promised to waive off by my immediate manager during my notice period.” The service agreement was created/drafted by employer in lieu of what extra ordinary favor by employer to you? Say some : certified class room training from some Instt. that added to your qualification? What was the expense incurred on the training? Or it was just that you should feel obliged since you have been taken into employment? Do you have evidence of waiver by Manager? Did you minute it in writing? Answer : This service agreement was created by the employer in lieu of some special training in India or Abroad which is I think provided to the employees. I never went through such training nor they ever discussed about this service agreement terms or related penalty amount for which this penalty amount is for. No institute training or any other training has ever been provided to me or any other person who has joined with me. May be it was a trick to bond the employees to work for at least one year. I don't have any evidence of waiver by manager as it was verbal. Waiver was promised to me if my manager could not provide me with the extension of the notice period. I do have the evidence confirming that I was asked for the extension of the notice period or resignation withdrawl which was denied later on at the end moment. Whats is this establishment; Commercial,Industrial? You are in which state? The repoerting office is in which state? The Redg. office is in which state? Answer : This is HR Outsourcing Company (BPO) I'm in Delhi. Reporting office is in Gurgaon. Registered office is in Delhi. What is your designation and nature of duties? Answer : My Designation is BOA (Benefits Ops Administrator) responsible for providing support in operational activities like processing, reviewing, communicating with onshore (US) operations team etc. It is a backend operations support to different services offered by the company in outsourcing in USA. Do you have decision making powers e.g. appointment/termination/sanction (not just recommendation) of increment-leave etc? Can your recommendations be cancelled by anyone above you? Answer : No, I don't have any decision making powers and I'm one level below to the manager level. Does the company have it certified standing order and does it cover your designation? Or does Model Standing orders apply to it? Do you its copy? Answer : Yes, I think company has certified order and it covers my designation as it is multi national company with more two to three thousand employees in India and they have this designation in other locations of India as well like in Noida, Chennai, Banglore etc. I do have the appontment letter mentioning my designation. Are you a member of any employee’s/Trade unions? Answer : No, I'm not a member of any union or I might have no knowledge about the unions as I'm going through such situation for the first time. Have you consulted an able labor Law Consultant/Service Matters Lawyer/Law Firm specializing in Labor-service matters? Answer : Yes, I had consulted it with a lawyer 2 weeks back just to get an idea of the process. That moment, I had also sent a notice but didn't get any reply yet. So now to take a legal action, I need to know the complete process. Please let me know if there are other questions. Thank you again.

Hi Kumar,

Thanks for the such a quick response.

Here is the answers for the questions you asked :

 

1. You have posted that: “I was working with a company located in Gurgaon and left the job on 9th of September 2015 after serving complete notice period due to unfair behaviour and mental harrassment by my manager for which I was not getting proper help from anywhere so decided to leave the company.” Do you have any evidence of unfair behavior and mental harassment (audio/visual/witnessed/minuted)? Did you mention this as a reason in notice of resignation/subsequent communications//resignation? Are you a member of any employee’s/trade unions?

Answer : No, I don't have any instance as of now as I have left the organization but yes, I had raised the matter to the HR in the month of Jan 2015 and told them to change my team. But that evidence is in company records. I didn't mention this as a reason in notice of resignation as I just wanted all things to be sorted out smoothly till my last day. And also I thought it is of no use as previous raised matter to the HR was closed without any solution when I had requested to change my team. But I had verbal conversations with HR during my notice period as well as with the other manager and I had told them the reason for my resignation.

2. “I took my resignation back one day before my last day but that request was also denied” Did you withdraw the resignation in writing? Do you have proof of dispatch, delivery?

Answer : Yes, I had withdrawn my resignation in writing and I do have the proof of it. I had forwarded all the evidences to my person email id on my last working day.

 

3. “But on my last day, they played a trick and denied to provide any extension to the notice period to complete the service period duration.’ Did you communicate about it in writing and do you have the copy?

Answer : Yes, the above discussion was done on the email and I do have that email as well.

4. “Now, I have become the victim of unfair behaviour of my employer as they are not providing me with the reliving letter and full and final settlement saying to pay the penalty under service agreement signed by me at the time of joining which was valid for one year. I had joined on 25th September 2014 and and there was only 16 days shortfall of my one year service agreement completion which was promised to waive off by my immediate manager during my notice period.”

The service agreement was created/drafted by employer in lieu of what extra ordinary favor by employer to you?

Say some : certified class room training from some Instt. that added to your qualification? What was the expense incurred on the training? Or it was just that you should feel obliged since you have been taken into employment?

Do you have evidence of waiver by Manager? Did you minute it in writing?

Answer : This service agreement was created by the employer in lieu of some special training in India or Abroad which is I think provided to the employees. I never went through such training nor they ever discussed about this service agreement terms or related penalty amount for which this penalty amount is for. No institute training or any other training has ever been provided to me or any other person who has joined with me. May be it was a trick to bond the employees to work for at least one year.

I don't have any evidence of waiver by manager as it was verbal. Waiver was promised to me if my manager could not provide me with the extension of the notice period. I do have the evidence confirming that I was asked for the extension of the notice period or resignation withdrawl which was denied later on at the end moment.

5. Whats is this establishment; Commercial,Industrial?

You are in which state?

The repoerting office is in which state?

The Redg. office is in which state?

Answer : This is HR Outsourcing Company (BPO) I'm in Delhi. Reporting office is in Gurgaon. Registered office is in Delhi.

6. What is your designation and nature of duties?

Answer : My Designation is BOA (Benefits Ops Administrator) responsible for providing support in operational activities like processing, reviewing, communicating with onshore (US) operations team etc. It is a backend operations support to different services offered by the company in outsourcing in USA.

7. Do you have decision making powers e.g. appointment/termination/sanction (not just recommendation) of increment-leave etc? Can your recommendations be cancelled by anyone above you?

Answer : No, I don't have any decision making powers and I'm one level below to the manager level.

8. Does the company have it certified standing order and does it cover your designation? Or does Model Standing orders apply to it? Do you its copy?

Answer : Yes, I think company has certified order and it covers my designation as it is multi national company with more two to three thousand employees in India and they have this designation in other locations of India as well like in Noida, Chennai, Banglore etc. I do have the appontment letter mentioning my designation.

9. Are you a member of any employee’s/Trade unions?

Answer : No, I'm not a member of any union or I might have no knowledge about the unions as I'm going through such situation for the first time. Have you consulted an able labor Law Consultant/Service Matters Lawyer/Law Firm specializing in Labor-service matters? Answer : Yes, I had consulted it with a lawyer 2 weeks back just to get an idea of the process. That moment, I had also sent a notice but didn't get any reply yet. So now to take a legal action, I need to know the complete process. Please let me know if there are other questions.

 

Thank you again.

Do you have copy of the service agreement, appointment letter, HR policy/service rules etc mentioned in appointment letter?

Obtain copy of the Certified standing orders, from establishment or certifying officer (usually DLC at the location of Redg. office of the company).

The service conditions stated in all of these documents may be examined verbatim.

 

 

1. You had withdrawn your notice of resignation and you have the evidence.Once withdrawn, there is no resignation.

Even after you had withdrawn the notice of resignation the company accepted it.While in fact there was no resignation (after you withdrew, before expiry of notice period)

If this can be proved it  may get termed as termination.

 

Supreme court of India has also delivered judgments that notice of resignation can be withdrawn before expiry of notice period and resignation can't be accepted before expiry of notice period.

 

 

2. If you have narrated the points mentioned in your post even if by email and these are not refuted by company so far you may have an edge...........................e.g. HR closed the matter without any soloution, internal emails.........................

You can demand copies of internal emails.

 

3. If no special favor was given then the service agreement may be unconcienable/unreasonable/invalid.................................and void.

 

4. The BPO are covered by ( name of the state) Shops and Estbs Act and you can approach:

 

Inspector appointed under ; Punjab Shops and Estbs Act..............(Haryana follow it).

As per explanation given, you should be covered by the def. of 'Employee' as in this Act, and 'Workman' as in ID Act.

You can agitate at Gurgaon/Delhi.............................location where company has an office/jurisdictional courts inserted in appointment letter.

If company has offices in many states then you may have to approach o/o Labor commissioner (Central ) if you are covered by the def. of 'Workman' as in ID Act......................

 

BPO/IT employee do have unions and are embraced by Trade Unions.

Employee should become a member.

 

 You can access able labor Law Consultant/Service Matters Lawyer/Law Firm specializing in Labor-service matters, at Delhi/Gurgaon......................................Labor-service matters is altogether different field of law and in each city there a few counsels that specialize in it.

You may prefer a counsel that prefer to stand for employees.

You seem to have a good case.

 

Wish you the best.

 

 

 

 

 

 

 

Thanks so much for such informational reply.

• Do you have copy of the service agreement, appointment letter, HR policy/service rules etc mentioned in appointment letter?

Yes, I do have the copy of the service agreement and appontment letter mentioning about the rules and duties about my profile.

• Obtain copy of the Certified standing orders, from establishment or certifying officer (usually DLC at the location of Redg. office of the company).

What is this certified standing orders and to whom I need to approach to get it. If this is company personal or some person appointed by the Government ?

• The service conditions stated in all of these documents may be examined verbatim.

I will get it done with a help of some expert lawyer of Labour Laws.

•  You had withdrawn your notice of resignation and you have the evidence.Once withdrawn, there is no resignation.

I do have the evidence of resignation withdrawl but HR states that it is completely company discretionary decision to accept such request or not. Is it valid and if yes, how can they force me to pay the penalty amount on the basis of their decision while I was ready to serve the company.

• Even after you had withdrawn the notice of resignation the company accepted it.While in fact there was no resignation (after you withdrew, before expiry of notice period) .If this can be proved it  may get termed as termination.

Yes, I had withdrawn it before the expiry of notice period. This can be proved very easily as I do have emails documentation for this.

• Supreme court of India has also delivered judgments that notice of resignation can be withdrawn before expiry of notice period and resignation can't be accepted before expiry of notice period.

Thanks for this information. Is it mentioned in some act or if you can provide me with this judgement (Did it recently delivered) or if you can provide me with the source of information from where I can get such judgements. (will help me a lot to make my case strong)

• If you have narrated the points mentioned in your post even if by email and these are not refuted by company so far you may have an edge...........................e.g. HR closed the matter without any soloution, internal emails.........................You can demand copies of internal emails.

Here, I do have the mails in my company mailbox. Can I ask HR to provide such emails or I need to approach someone else in the company.

•  If no special favor was given then the service agreement may be unconcienable/unreasonable/invalid.................................and void.

No special favor was given so far. They just pretended for around two weeks that they are looking an researching on my matter but at the end, ignoring all the evidences and conversations, sent me an email to pay the recovery amount.

 

•  The BPO are covered by ( name of the state) Shops and Estbs Act and you can approach:

Inspector appointed under ; Punjab Shops and Estbs Act..............(Haryana follow it).

As per explanation given, you should be covered by the def. of 'Employee' as in this Act, and 'Workman' as in ID Act.

You can agitate at Gurgaon/Delhi.............................location where company has an office/jurisdictional courts inserted in appointment letter.

If company has offices in many states then you may have to approach o/o Labor commissioner (Central ) if you are covered by the def. of 'Workman' as in ID Act......................

Ok, I will take keep this information in mind in further steps. Thanks

• BPO/IT employee do have unions and are embraced by Trade Unions. Employee should become a member.

Where can I find the information about these trade unions. Are these government undertaken and work freely. 

 

•  You can access able labor Law Consultant/Service Matters Lawyer/Law Firm specializing in Labor-service matters, at Delhi/Gurgaon......................................Labor-service matters is altogether different field of law and in each city there a few counsels that specialize in it.

You may prefer a counsel that prefer to stand for employees. You seem to have a good case.

Ok, thanks for this information. 

Wish you the best.

Thanks for your lovely wishes. I really appreciate the help you offered.

 

You have unnecessarily remained entangled with Line Managers/HR personnel.HR personnel are also controlled by the employer’s policies/orders from masters (published/verbal) and have to defend their own interest and job. You could have escalated to good offices of appointing authority/MD/Chairman.

 

For Service Rules & Regulations/Service Conditions: service agreement, appointment letter, HR policy/service rules etc mentioned in appointment letter, standing orders (Certified/Model)………………….etc all documents should be examined verbatim. This shall clarify whether employer/company has the power/discretion to accept/reject the withdrawal of resignation. An able Labor law consultant can opine whether you are covered by the def. of employee and workman in the enactments. The enactments being Act/statue/instrument of law shall prevail upon any private agreement that employer has drafted and signed with employee.

 

Standing orders (Certified/Model): You had posted that company has its certified standing orders. IT has already been posted that these can be demanded from company (appointing authority/MD/Chairman/Head-HR/designated person in company and company has to supply even if against a nominal cost say Rs10/-…………………….or the company shall write that it has been exempted from standing orders………………….or standing orders are not certified and Model Standing orders shall apply………………….Or standing orders are certified and your designation is covered/not covered etc…………), and also from certifying officer (usually DLC at the location of Redg. office of the company). You may check with certifying officer at Delhi and Gurgaon. The state govt. of Haryana/Delhi might have granted exemption or might have not.

If standing orders are applicable then employer personally is held responsible for faithful observance of standing orders.

These enactments being statue/instrument of law shall prevail upon any private agreement that employer has drafted and signed with employee.

An able Labor law consultant can opine whether you/your designation are covered by certified standing orders and the def. of workman in Model Standing Orders.

 

Delhi/Haryana Shops and Estbs Act: This Act was enacted to govern the service conditions of employees working in establishments covered by this Act. An able Labor law consultant can opine whether you are covered by the def. of ‘employee’ as in this Act.

 

Any T&C in appointment letter etc that is inconsistent with the enactments shall not survive and shall be void.

 

Supreme Court of India judgments: In matters of service jurisprudence the judgments by apex court become law. Our able counsel after examining your service conditions and your being covered by various enactments can choose the suitable judgments. Certainly there are applicable judgments by apex court that each subordinate court considers and follows.

 

You must narrate (you are aware of the details/dates/recipients/matter etc) internal emails of the company and demand access to download the copies and also that authenticated copies on record to be supplied to you. You must also request to let you examine your personnel file maintained by the copy. You may demand copy of the service card and various registers that are prescribed under Haryana Shops and Estbs Rules (prescribed under Haryana Shops and Estbs Act)………………..and if the company does not tender it you may pursue with o/o Inspector appointed under the Act or thru RTI.

You have posted that you had affirmed to serve further after withdrawal of resignation and did not tender resignation again after withdrawal……………………..and that you faced mental harassment. Your counsel may opine that it amounts to unfair termination/retrenchment compensation, etc.

 

However let your able counsel finally opines what, when and where you need to ask what and how!

 

 

You have posted that no training of any sort was ever given to you hence there is no ground for service agreement and it should have on its won cancelled by the company, it being unconscionable………………….etc. There are judgments in this regard as well :::

--One that provides for pro rated liquidated damages e.g. 150000/12/30*16=6667

--One that provides for the service agreement/liquidated damages is against service regulations………………

and others……………………….

Your able counsel after examining your service conditions, facts and evidences of record can choose the suitable judgments.

 

Search and ask around and you will find many employee’s unions of BPO/IT/ITeS employee and many of them are affiliated with trade Unions. Each trade union at national level e.g. CITU/INTUC/AICTU/BMS etc  has office in Delhi.

 

 

 

 

 

 

Thanks so much for your help and support. I will start with visiting labour commissioner office to get more details. Information provided here will help me a lot.

Online discussion have its own limits.

None of the document that you have quoted has been examined.

As per your posts you have already issued legal notice and company has not bothered and replied.

It shall be appropriate if you consult an able counsel before you proceed on your own.

Wish you the best.