Notice period

Very strange company can terminate any of employee given 3 months advance notice but emplyee cant , if you are serving one month notice period and paying rest two months salary to that firm it should be smooth process to your releiving. You can try to discuss with your line manager or the heading authority of your firm, I hope within 30 days serving notice period they will agree to relieve you.

Hi, Thank you for the reply but as said this can't be a good relieving now as they are neither ready to relieve me before 90 days nor ready to deduct notice period.

What will happen if i go ahead to join new company?

Here are the possible implication

Gratuity - If you have completed more than 4 years and 11 months of service, you are bound to get Gratuity as there is a greviance redressal forum and the company is obiliged to pay

PF - Irrespective of whatever exit you follow, good or bad, you can claim PF

Service certificate and opinion during reference check - If you resort to labour court, you will get a service certificate for sure, however, the HR folks can spoil your reference check (as you say they have personal grudge) . Even though your next company may ask you to join without releving letter but from the perspective of a long term career a service certificate is a must.

The Terms of condition of employment appears to be vague and baised. consult a labour court advocate / expert who can guide you better on the legal aspects.

in my experience, the companies avoid cases in labour court and often settle with the outgoing employees as it affets their goodwill and brand.

If you can achieve success with your skills and amicably, with stake holders in current employer then nothing like it..............The heated arguments may not necessarily resolve the matter………..

If you can achieve success with your skills and amicably, with stake holders in next employer then nothing like it..............

If you are unable to resolve with your own skills lean on your counsels.....

Notice period is part of service conditions that are governed by various enactments, also.

The T&C in contract of employment should be equitable or these can be easily termed arbitrary.

Notice period of 90 days may not be necessarily applicable in your case, even if this is inserted in private document/agreement/contract/appointment letter /offer letter drafted by employer and signed with you (employee).

The enactment applicable to employee/establishment/employer may not lay down notice period/pay for employee.

ID Act also does not lay down notice period for employee.

First of all try to determine if you are covered by enactments.

Although you have posted some information; still, while posting such queries employee should post basic information!

What is this establishment; Commercial, Industrial?

What is its nature of business say; IT, ITeS?

How many persons are employed in it?

What is your designation and nature of duties?

How many persons report to you?

Do you have any power to sanction leave/increment/appoint/terminate/appraise etc etc ?

You are in which state? Since how many months you are working?

Do standing orders (model/certified) apply to establishment and your designation?

What is notice period as per appointment letter/offer letter and what was notice period tendered by you in notice of resignation?

Are you under probation period or your service is confirmed in writing?

Was ever any stinker, memo, show cause notice on any misconduct issued to you?

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

Has the establishment issued/supplied, offer letter, appointment letter, salary slips of all months,

PF number and a/c slips of all years, ESIC card, correct FnF statement, acknowledgment and

acceptance of notice of resignation/final resignation, acknowledgment of handover of charge, NOC/NDC……………?

Post your reply pointwise for further discussion.....

Gratuity: Can be forfeited only in line and spirit of provision of applicable Gratuity Rules/Act.

Do you have published version of applicable Gratuity Rules/Act of establishment?

In the mean time you may go thru:

Payment of Gratuity Act, 1972: 2A, 4(6),7

https://www.labour.nic.in/sites/default/files/ThePaymentofGratuityAct1972.pdf

and 

THE PAYMENT OF GRATUITY (CENTRAL) RULES, 1972-1 

https://labour.gov.in/sites/default/files/ThePaymentofGratuityRules.pdf

There are many threads on similar query on Gratuity at LCI e.g;

https://www.lawyersclubindia.com/forum/display.asp?cat_id=9&forum_id=49#.VEDdm2eSwb8

e.g:  

https://www.lawyersclubindia.com/forum/Clarity-between-gratuity-eligibility-service-5-or-4-8-yrs--28768.asp

https://www.lawyersclubindia.com/forum/P-f-gratuity-90740.asp

PF; It is better to transfer PF to next employer.

The current emplyer may not have any role in it.

Service Certificte should be issued to all employees and is covered by enactments .

Relieving Letter; signifies employee has resigned and nothing is due towards emnployee.

The acknowledgment/acceptance of resignation (even POD of resignation) coupled with salalry slips, FnF statement, PF slips,Form16,NOC/NDC acknowledgment of handover of charge/assets etc can be as good as  Relieving statement...............and it is only upto next employer to absorb employee on strength of even copy of resignation..........

Does your next employer agree to absorb you without service certificate, relieving letter, FNF settlement/statement from current employer......................and on the strength of copy of notice of resignation+final resignation and at the most It's POD?

Does it agree that it won't ask for any affidavit from you to affirm that you shall supply service certificate, relieving letter etc within...................days or your employment can be terminated?

Have you appraised next employer during interview verbally/in employment application that current employer has notice period of 3 months..................and have you mentioned joining period of 3 months?

Have you appraised next employer that current employer may not give you clear BGV and may post adverse comments due to reason that you shall not be serving full notice period?

Will your next employer still support you and let you remain in employment and will not terminate you?

Will next employer buy out your notice period (Yes; as posted by you)?

Take your next employer in confidence to accept you on strength of copy of notice of resignation, final resignation and their POD and to stand by you if current employer does not provide any of the other docs as mentioned above and does not clear BGV or posts adverse comments, since you did not agree to serve full notice period.

Take current employer (anyone in line management/HR/admin/good offices of appointing authority/MD/CEO/Board/ employee’s-trade unions/Works Committee/Grievance Redressal Committee………………..and even if Labor Inspectorate/O/o Labor Commissioner/Higher officials of Dept. of Labor etc etc ….  that can settle the matter of ego/conflict with HR Head) in confidence to relieve you with good comments and try to provide internal/external replacement, train replacement, complete all tasks on hand and offer to tender notice pay in lieu of notice period............ 

Other perspectives are:

To be a member of employee's/IT-ITeS employee's unions/trade unions and seek their support

Seek support of a local very able senior counsel of unshakable repute and integrity specializing

in Labor /service matters

There might be some comments/communications that may indicate to decision making, authority

or may not be...............

I am sending you a few links that you may go thru and pick up relevant points...

You may go thru links and assess your duties on record in company.

You may keep elders of your family,competent and experienced well wishers, employee's/trade union leaders, your own LOCAL counsels of unshakable repute and integrity specializing  in Labor/service matters by your side..............

You may submit a gentle communication, under proper acknlwlegment, addressed to the authorties/good offices that NO tasks are pending at yor end and rotine duties be assigned to yout that can be completed on day to day basis during notice period ( as tendered by by you clearly) and to whom you should handover the charge/assets during notice period, under proper acknowledgment.

remain alert and do not give any opportunity to employer and IT's attorneys in line management/HR/Admin/personnel/Legal cells to charge you any count e.g; Loss/Non completion of tasks/misconduct/misbehaviour...................etc etc.............

Employee(you)can submit FnF statement (under proepr acknowledgment) , as peceived by employee and ask employer to check and confirm it as correct............

THANK YOU EVERYONE FOR YOUR ADVICES !! :)