Relieving letter- employer causing delay & not issuing.

Unfair prohibition is opposed to public policy. The employer can not insist that the employee should not join the similar industry, or else pay penalty etc.. We are travelling from "nothing can be done, unless permitted in law" to "everything can be done, unless prohibited by law". At this stage, you should only apply different labour authorities in relation to salary, provident fund, gratuity etc.. 

However, what I clearly see is that there is deficient period of notice. Anyway, if insisted, ask them to deduct from the account. 

Mr. Hemang has given valuable advice. Kindly follow it.

PF: Transfer of PF: Member of PF scheme (Employee) has to simply submit the PF forms to new employer (under proper acknowledgment of course). The past employer is not in the picture.

Refusal to attest the PF forms is offence. If the employer does not attest the PF forms employee may lodge complaint against employer. The complaint can be routed thru/submitted at nearest PF office (under acknowledgment of course) and request can be made to depute PF official and penalize the employer.

Form16: The employee can lodge a complaint with ITO, I/c-TDS in local office, and CIT-TDS in jurisdictional office of IT where employer files return. There is provision for penalty if Form 16 is not supplied by deductor. Employee should maintain from beginning that Form 16 and any other document and payment by bank DD only be supplied by redg. post only. In case the employer is recalcitrant employee may add that postage prepaid, self addressed envelope is attached for sending redg. post to him.

Acceptance of resignation with immediate effect: In subsequent communications employee should mention/elaborate/clarify/add  that on dated………….from phone number…………Mr/Ms…………..designation/dept……………..name of company………….address……………….called at phone number………………and stated that employee………Mr/Ms……………….may not come to attend office from dated………………and the notice of resignation dated…………tendering notice period of ……….days, effective from dated…………..is accepted w.e.f from dated…………….and all security etc is being informed to not to allow entry of employee in office premises/ access to work station from dated…………………and requisite communication in writing shall be supplied to employee subsequently.

Employee may add that instead of date of retirement communicated by employee i.e. dated…………….Mr/Ms………….on behalf of company has stated that employee stand relieved w.e.f dated…………………..

Resignation should not be accepted before the effective date of resignation ( date of retirement) given by employee:

Supreme Court of India

Nand Keshwar Prasad vs Indian Farmers Fertilizers .

 “11. After giving our careful consideration to the facts and circumstances of the case, it appears to us that the law is well settled by this Court in a number of decisions that unless controlled by condition of service or the statutory provisions, the retirement mentioned in the letter of resignation must take effect from the date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date when the employee concerned did not intend to retire from such earlier date. It has also been held by this Court that it is open to the employee concerned to withdraw letter of resignation before the same becomes effective.”

In your case the company should either offer to tender notice pay to you for the shortfall in notice period…………………

If you are not gainfully employed after acceptance of resignation before date of retirement chosen by employee, you may state so and even that your PF a/c and future employability is getting affected due to abrupt termination caused by company………..

If the group medicalim policy is also terminated by company ( which it must have) you may lodge protest that your insurability is affected and any company shall now treat a policy as new policy……………….(  pre existing diseases etc inclusion and exclusion criteria)………..

After the receipt of notice of resignation/ abrupt termination by company: the company is under obligation to supply you the acknowledgment of notice of resignation/acceptance of resignation, work experience/service certificate, relieving letter, correct FNF statement, Form 16 as per correct FNF statement, PF number/account slips for whole tenure of service, salary slips, NDC, acknowledgment of handover of charge/company property if any…………..etc

In all of the communications posted by you company has not asked you for any handover of charge/company property ( however if you have handed over you must mention that although you were abruptly asked to leave you have handed over the items/charge to Mr/Ms………….and acknowledgment is due to be supplied to you.)

You have already posted on record that you have not joined any other company.

Reliving letter is supplied post all settlements by employee e.g. hand over of charge, company property etc………….completion of exit formalities. Company has stated that you have to fill some forms. Filling some forms is OK but if company want you to sign some agreement at the time of exit it is to be seen by you.

It might a non disclosure agreement. Has the company provided you some specialized training /sent you abroad or were you privy to some trade secrets, or did you have access to some sensitive information?  5 Lacs compensation is a huge amount and until or unless company has invested heavily on you, it may not be justified.

You may also check your appointment letter or subsequent communication(s)  in writing, and find out of it is stated that you shall have to sign any such agreement or any documents introduced from time to time, or all policies introduced by employer from time to time shall be acceptable and applicable to employee.

 If you have already shifted from location you can ask that soft copies of the forms be supplied to you.

You can also state that GM should have instructed all concerned to issue all such forms on the very day he abruptly terminated the employment, so that everything could have been done by you. If deemed fit you may demand advance payment of cost to be incurred for visiting the company, and agree to submit bills as per your entitlement and other costs born by you.

If employee is covered as a workman ID can be raised.

Model Standing orders: 13.          Termination of employment.- (3)      Where the employment of any workmen is terminated, the wages earned by him and other dues, if any, shall be paid before the expiry of the second working day from the day on which his employment is terminated.

16.  Certificate on termination of service.--Every permanent  workman shall be entitled to a service certificate at the time of his dismissal, discharge or retirement from service.

NOTE. - There is a provision under  this  Act for issuing a service certificate at the time of  dismissal, discharge or retirement and every person is entitled to take such certificate.

Day for payment of FNF dues is max. by usual pay day.

If company has stated Gratuity in CTC sheet issued to you, you may succeed to rake up the issue and get it.

If company has its internal policy to take ……say 15/30 days for supplying the FNF statement, then it should quote such policy and supply the printed version.

You may obtain the HR policy, exit policy, severance policy, standing orders, service rules of the company, check what is the TAT for FNF settlement.

Character Certificate: Character Verification: private employers do not issue it.

Police authority is vested with right to do it.

Private employers make such comments and hints as some zealous vindictive line managers/HR/senior managers/employers add adverse comments in relieving letter/reference check…………. 

If you think this GM is stepping on your toes and is hinting character assassination you may consult with your lawyer and charge him by name.

GM is not your employer. You may escalate to the good offices of appointing authority, MD, Chairman, Promoter/Owner, Company Secretary etc…..

Non Compete Clause: Indian courts have consistently refused to enforce post-termination non-compete clauses in employment contracts, viewing them as "restraint of trade" impermissible under Section 27 of the Indian Contract Act, 1872, and as void and against public policy because of their potential to deprive an individual of his or her fundamental right to earn a livelihood.

You may show your appointment letter, HR policy, exit policy, severance policy, standing orders, service rules of the company, to your lawyer, spend some quality time with your lawyer, and proceed under expert advice of your lawyer.

Your lawyer may ask you a set of structured questions and may opine that you fall within the category of workman and employee as stated in shops and establishments act, or not and accordingly you can approach the forum applicable to you e.g. o/o Labor commissioner, Inspector Shops and establishments Act, civil court.

Unpaid wages can be claimed under Payment of Wages Act which is applicable to all employees drawing wages up to Rs.18000/pm.

Section: 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;”

You may go thru: THE  TAMILNADU  SHOPS  AND  EST ABLISH ME N T S  A C T : Sec:2, 28, 29,30,32,34, 41, 47 etc.

https://www.lawyersclubindia.com/forum/Company-introducing-new-exit-policy-during-notice-period-80765.asp#.UbMVNdKAqWM

Hemang Sir and Kumar Doab Sir,

Thank you so much for your suggestions.

Sir(s),

A.    I want a further Clarification. Does Tamilnadu Shops and Establishment Act Apply ?? Bcoz

(1) Head Office is in Mumbai and I was working at a branch in Chennai.

(2) My Payslips contains Mumbai office details ONLY (there is nowhere any mention about Chennai in Payship).

(3) Contradicting to Point (2) above, OFFER Letter specified that the employee will work at Chennai Office but liable to be transfered anywhere in/outside India.

(4) Also, the terms of employment states that any arbitration/dispute which arises will come under Mumbai Jurisdiction.

B. The Company has not spent any single Rupee on my training.

Please clarify the above. Thank you.

A:1,2,3,: THE  TAMILNADU  SHOPS  AND  EST ABLISH ME N T S  A C T should apply.

A: 3: You had no authority or control to bind the company in any manner.

A: 4; The location can be last location of employee where the cause of action has happened, location of redg. office of the company, jurisdictional courts as stated in contract of appointment………………..

If there is a scope of arbitration then which is the seat of arbitration and who shall choose the arbitrator, and who shall be the arbiterator?

While the employee may endeavor to be in category of workman as in ID and/or Employee as in Shops and Establishments Act………………..as the options available to employer shall be limited in such a case.

The company would scream that individual is not covered in the definition of workman and employee as in these enactments, specific relief act applies and contract of employment can not be enforced in court of law and that as stated in appointment letter the alternative available is arbitration: seat of arbitration and jurisdiction of courts is Mumbai. These two issued should be addressed.

In Chennai and Mumbai you can access lawyers/law firms par excellence.

Bombay Shops and Establishments Act is so employee Friendly:

38. Application and amendment of the Payment of Wages Act. (l) Notwithstanding anything contained in the Payment of Wages

Act,  1936, (V  ?f

1936)………. the Inspector appointed under this Act shall be deemed to be the Inspector…herein referred to as "the said Act",…….for the purpose of the enforcement of hei provisions of the said Act within the local limits of his jurisdiction.

( Implies that the Inspector under SE Act shall be the Wages Inspector )

[?8 ?. Application of Act VIII of 1923 to employees of establishment.-The provisions of the Workmen's Compensation Act,  1923  (VIII  of  1923),  and the rules  made from time to time thereunder, shall,  mutatis mutandis,  apply to employees  of  an establishment to  which this Act applies, as if they were workmen within t! meaning of the Workmen's Compensation Act, 1923.

( Implies any employee under SE Act shall be eligible as if he is a workman and can invoke WC Act)

^[??-?.  Application of Industrial Employment (Standing Orders) Act to establishments.-The  provisions of the Industrial Employment (Standing Orders) Act,  1946,  in its application to the State of Maharashtra [(hereinafter in this section referred to as "the said Act"), and the rules and standing orders (including model standing orders) made thereunder from time to time, shall,  mutatis rnuimdis,  apply to  all establishments wherein fifty or more employees are employed and to which this Act applies, as if they were industrial establishment within the meaning of the said Act.

(Implies if company is under SE Act and if it has not framed its standing orders the model standing orders shall apply to all employees. Model Standing Orders are attached. You can also download from Dept. of Labor Maharashtra/Bombay website also. Thus while you can approach Inspector under SE Act you should also be eligible to approach Labor Inspector/ALC.)

{ Model Standing Orders: 3.               Tickets,  11.         Payment of wages,  13.       Termination of employment,  15.      Complaints, 17.  Liability of 17[employer].--, 18.          Exhibition of standing orders.-)

51.    Employer [and manager  to produce registers, records etc.  for inspection.

( Implies that if you lodge a complaint the Inspector can not check all records, your personnel file but can take these to his office. You may obtain certified copies and even peruse RTI route.)

Moreover the Inspector is under obligation report every two months as given in Sec.66

55.    False entries by employer and manager.

58.    Determination of employer for the purpose of this  Act.

??.Notice    of termination of service

You may show all documents, give inputs, spend quality time with your lawyer, understand the merits, and proceed under expert advice of your; lawyer/law firm.