Service certificate issue

it is better to go to office personally and meet your director and settle the matter because if the matter prolongs then more complications arise till you come to your previous employer from malyasia keep sending emails do not stop correspondence 

You were located in which state?

The  redg. office/ HO of the company was located in which state?

You have posted that:

---“The probation period was 6 months.They kept on extending it without any leaves or benefits.’

You could have shifted to a better employer.

Now the employer would always claim that the performance was not satisfactory and hence probation period was extended………..times.

The question arises did the employer conduct appraisals, provide you the copy of appraisal, and communicate the reason for extension of probation period?

What is the maximum period of probation stated in the appointment letter 18 months or 24 months?

Apparently the employer is in the practice of extending probation to deny the benefits and keep the employee on edges.

Courts are not dumb and can assess that prolonged extension of probation is with malafide intentions.

Your lawyer would know how to handle it.

---“When I followed up rigorously with the staff then they replied by mail saying they will give my designation as Trainee Toolroom manager since I have not been up to their satisfaction and also that their projects suffered since I left the organisation.”

The Director has assigned this employee to reply to you.

Having succeeded in getting this communication in writing, now you may build your case from this reply of the company.

The designation in appointment letter shall be the designation in service certificate, until or unless company caused any demotion in writing with a copy to you.

If there was no probation period stated in appointment letter and the service conditions were not amended or changed by any corrigendum, communication in writing to you and your consent was taken in writing, the service conditions stated in appointment letter should apply.

Such companies state in appointment letter that change in terms and conditions announced from time to time shall be applicable and acceptable to employee.

Has the company stated so in appointment letter?

How many other employees were kept in probation like you?

If company was in the habit of applying such tactics then it is unworthy of being employed with.

You may submit a representation addressed to appointing authority, MD, Chairman, Company Secretary, and narrate made by you so far by phone/email/letter etc., and mention date/phone number/name-designation-dept-name of company-address of company personnel to whom you had represented, and brief minutes of discussion and conclude that you have been clamoring for your hard earned wages, and documents pertaining to your employment, and same have not been supplied to you despite unlimited number of representations. You may highlight that although as per appointment letter dated………issued to you there was  no notice period applicable to you as a goodwill gesture you had tendered and served 15 days notice period and no task was left incomplete by you. You may deny the charge/allegation of having caused any loss to company. It is believed that before this email company has never leveled any allegation of having caused loss on you.

Resignation can be without permission or notice.

The employer should have put his house in order within 15 days of notice tendered and served by you.

You may send a copy to the company employee who sent a reply to you, and keep on pursuing and pushing to resolve the matter.

---“ To file my IT returns I must get my form 16 form the company. ‘

You should raise a demand to supply the hard copy of the Form 16 by redg. post at your last address recorded with company or supply your new address.

The deductor has to supply the Form 16 or he can be penalized.

You can lodge a complaint with jurisdictional CIT-TDS both where you filed your IT return and company files its return.

If you have registered with IT dept. you can obtain Form 16 from website also.

---“ Also let me mention that I am currently in Malaysia working for a company and I am confused about future course of action in this regard since I am not physically present in India to take up legal action.”

You can give power of attorney to any one.

Your lawyer can represent you.

--- 2 month’s notice period during probation is unreasonable.

Notice period is part of the service conditions. Service conditions are stated in Standing Orders of the company, appointment letter, Shops and Establishments Act of the state, statue.

The employee who is covered by these enactments shall be protected up to that extent.

Designation alone does not decide employee is a workman or not.

You are asking for Service Certificate, which may not have any column for Conduct.

Company is stating dissatisfactory service and loss caused to it.

It may issue relieving letter with column on Conduct and may post adverse comments.

This is a situation which you should handle, successfully in your favor.

Or the company has taken this stand to convince you to treat your unpaid wages as a parting gift and forget about it.

There is another interesting thread at the following link:

https://www.lawyersclubindia.com/forum/Senior-quits-during-probation-advise-required-78308.asp

I was employed by a company in Goa. Let me give you more details for clarity about the company.

Owner : He is from Goa but was settled in Australia for over 30 years running his own business. He is a citizen of Australia. Travels frequently to India.

Employee Strength : 10 - 12 people max at any given point of time.
Track record of terminating employees without notice : Excellent

I could not shift to another employer immediately because I had shifted my family from Mumbai to Goa and incurred a lot of expenses to relocate. Could not really afford another relocation.

There was no appraisal procedure nor written communication from the company. Only once I got a reply to my email from director, after 1 year that he would consider in due time. Only one line. Rest of the times it was verbal message from the Technical Manager (director's mouth piece) that my probation is extended till further instructions. There was no maximum period mentioned as such in the appointment letter apart from mentioning 6 months of probation period. Also there was no demotion letter at any point of time given to me.

The director might have instructed him(technical manager in australia) but the copy was sent to the director as well. So he is aware of all that is happening.

 There is another employee currently serving the company under probation for more than 2 yrs who joined before me. Rest of them were either terminated without notice or they left on their own understanding the tactics of the company. However many of them did not get the pay as well as certificate and they left it helplessly. One employee already filed a case against the director.

I have already tried highlighting the situation with the Director stating the necessity along with the reference dates of my emails of resignation letter, reminder of my last date in the company, followup there after. But he never bothered to reply even to a single mail on his own. I received a reply from the Technical Manager only after a lot of follow ups and finally questioning about their standards, morals and ethics. He then started abusing Indians and India in his mail to which I had to reply in the same way. There were also several unruly statements in the mail that would boil the blood of any Indian. He was going adamantly personal against me and Indians just because I questioned their morals & ethics while holding me for ransom by not relieving me in a proper procedure.

However I would not claim that I have completed all the tasks because they were a mixture of old and new projects that require several weeks of time to complete. I clearly mentioned in the resignation letter(by office email) that I would only try to complete the existing jobs as much as possible and never mentioned that I would leave the company only after finishing all the jobs. The company never alleged any loss in writing before I left the company.

The IT returns filed by me were from my employer in Mumbai for the period 2010-2011. After I joined this company in May 2011, I have not received Form 16 at all. I have requested the director to post the form 16 to my res. address along with the service certificate after leaving the company through my personal mail id. There was no reply for that as well.

I would not mind getting a bad conduct certificate as long as it is after a hearing by the court of law and a judgement is given to issue a certificate at any cost. All I need is the period that I have worked with a particular company.

And of course none of the customers I handled had any complaint with my work. They always complimented me for the work and they even do remember me in those terms after leaving that company.

Hope I gave more clarity with the above. It would be of immense help if I can get step wise instruction of how to proceed further and whom to contact? Also am looking forward to get some recommendations about a lawyer whom I can deal with by staying abroad.My wife is currently in Hyderabad for another 1 month before joining me in malaysia. May be she can do some paperwork on my behalf. Please advice.

Thanks and Regards,
Gokul.

You have posted that:

---“I could not shift to another employer immediately because I had shifted my family from Mumbai to Goa and incurred a lot of expenses to relocate.”

Did you negotiate to be paid for relocation expenses and was it agreed upon verbally or in writing? Did you submit claim for relocation expenses, if yes did the company pay or decline or maintain maximum period mentioned as such in the appointment letter apart from mentioning 6 months of probation period.”

The practice adopted by company is unfair.

If it is not written in appointment letter that services shall be confirmed in writing or till confirmed in writing then your services may be deemed having been confirmed.

However let your lawyer go thru the appointment letter carefully.

---Does this company provide pay slip/salary slip?

As per payment of wages Act the pay slip should be signed by employee and employer should maintain record for 3 years.  

---“ There is another employee currently serving the company under probation for more than 2 yrs who joined before me.”

It is felt that 2 years may be the maximum time to keep an employee on probation, as per service rules of the company.

“However many of them did not get the pay as well as certificate and they left it helplessly. One employee already filed a case against the director.”

All of the affected employees can join hands, be witness to each other and lodge a complaint/case, jointly or thru a lawyer.

The employee who has filed a case can brief you on the proceedings.

---“I clearly mentioned in the resignation letter(by office email) that I would only try to complete the existing jobs as much as possible and never mentioned that I would leave the company only after finishing all the jobs.’

There is no need to write more than what is required.

Avoid emotional outbursts.

Affirm that you have tendered and served notice period and completed all tasks, handed over company property and charge and that no acknowledgment has been issued by company and same should be issued.

---‘I have requested the director to post the form 16 to my res.’

Demand thru redg. post/speed post only and you may mention that you had submitted a postage prepaid ( as purchased from PO) self addressed envelope and you are submitting another postage prepaid self addressed envelope.

---“ And of course none of the customers I handled had any complaint with my work. They always complimented me for the work and they even do remember me in those terms after leaving that company.”

Obtain it in writing even if by email.

---If you wish to avail the services of LCI lawyer you can conduct search at:

https://www.lawyersclubindia.com/lawyers_search/#.UWQ1KtgsHso

Related Lawyer’s list is displayed on the bottom of this web page, also.

Your near and dear ones, colleagues, trade union leaders can also refer you to a good labor consultant/service lawyer.

--- If director is abroad you may look into the registration certificate of the establishment which is to be displayed near entrance on notice board and find out whose name is mentioned as employer/Manager/ Agent of the employer and you may address your notices to him also.

The Payment of Wages Act should also be displayed near entrance/on notice board.

Designation alone does not decide employee is a workman or not.

Your lawyer may ask you a set of structured questions and may opine that you fall within the category of a workman. The enactments applicable to workman limit the choice to employer.

2 month’s notice period during probation is unreasonable.

Notice period is part of the service conditions. Service conditions are stated in Standing Orders of the company, appointment letter, Shops and Establishments Act of the state, statue.

The employee who is covered by these enactments shall be protected up to that extent.

You may check with your lawyer as standing orders may be applicable to establishment to which Payment of Wages Act is applicable.

-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.

- Shops and Establishments Act Goa: ( The enactment does not indiscriminate between workman and non workman and is applicable to all employees. One of the duties of the Inspector under this act is to ensure that a/c of separated employee is properly settled.)

2. Definitions.

(4) “commercial establishment” means……..

(7) “employee” means………

(8) “employer” means………..

(24) “wages” means………..

3. Registration of Establishments and renewal of registration certificates……..

(a) the name of the employer and the manager, if any;…..

30. Time for payment of wages..

39. Conditions for terminating the service of an employee and payment of

gratuity.—(1) No employer shall without a reasonable cause and except for misconduct, terminate the service of an employee who has been in his employment continuously for a

period of not less than six months without giving such employee, at least one month’s notice in writing or wages in lieu thereof and a gratuity amounting to fifteen days’ average wages for each year of continuous employment.

40. Appointment of authority to hear and decide appeals arising out of

termination of service.—

43. Claims arising out of deductions from wages or delay in payment of wages,

etc. and penalty for malicious or vexatious claims.—

44. Single application in respect of claims from unpaid group.—

46. Conditional attachment of property of employer.—

50. Powers and duties of Inspectors.

- Payment of Wages Act.( Applicable in case of all employees whose wages are up to Rs.18000/pm, as per definition of wages in the Act)

2. Definitions.

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;

3. Responsibility for payment of wages……..

5. Time of payment of wages………….

(2) Where the employment of any person is terminated by or on behalf of the employer, the wages earned by him shall be paid before the expiry of the second working day from the day on which his employment is terminated:

13A.

Maintenance of registers and records.

5*[13A. Maintenance of registers and records.-(1) Every employer shall maintain such registers and records giving such particulars of persons employed by him, the work

performed by them, the wages paid to them, the deductions made from

their wages, the receipts given by them and such other particulars and

in such form as may be prescribed.

(2) Every register and record required to be maintained under this section shall, for the purposes of this Act, be preserved for a period of three years after the date of the last entry made therein.]

16. Single application in respect of claims from unpaid group.-

17A. Conditional attachment of property of employer or other Person responsible for payment of wages……..

25. Display by notice of abstracts of the Act.-…….

-----The contcat details of the Inspector under SE Act, Payment of Wages Act and of ALC in o/o Labor Commissioner may be available at Dept. of Labor Website of Goa.

You and all affected employees can file complaint/case on thier own/thru representative/lawyer/labor consultant.