What has happened with you is unfortunate. Many times HR's in general and top management in particular does not understand the difference between the removal because of administrative reasons and on disciplinary grounds. Under-performance is not indiscipline per se. Owing to underperformance, if the punishment of termination is awarded then what is left now? As far as India jurisprudence is concerned, no person can be awarded two or more than two punishments for the same offence. Under-performance is not offence however, even if it considered as offence, then also there cannot be additional punishment by way of withholding of relieving letter. Withholding relieving letter is a fiendishness that is equivalent to mutilating of dead body of a soldier who is killed in war.
The problem is that in India not many HR are mature enough to understand the degree of misconduct and what merits withholding the relieving letter. Those who are mature, they may not have enough say in the organisational affairs and they keep on affirming what their top bosses say. The memory of an incident where persons none less than Anand Mahindra and CEO of Tech Mahindra had to apologise because of harshness of their HR is still live. It appears employers do not learn any lessons from the failure of the other employers.
Solution: - As a first step, I recommend you putting up application addressing to the MD of the company for the release of the relieving letter. The draft of the letter is as below:
______________ (your name)
Ex-employee No: - ______________
The Managing Director (if not MD then write the letter to the highest authority like India Head)
_____________ (complete name of your company, address with PIN code)
Issue of Service-cum- Employment Certificate
1. This is to inform you that I joined _____________ (name of the company) as _________ (designation) on ________ (date). I was working in ________ (name of your department).
2. On completion of 18 months of my employment I was told that my employment was not satisfactory. Due to this, I was placed under Performance Improvement Plan (PIP) for a period of two months. On completion of PIP period again my performance was not found satisfactory and my services were discontinued. My last working day was __________ (date).
3. Before my exit, I completed all the formalities for the separation from the company. Later I requested to provide Service-cum-Employment Certificate for the period that I worked in _________ (complete name of your company). However, I was told that I will not be provided the said certificate.
4. For failing to render certain level of performance, I was awarded the punishment of the highest kind. Withholding this certificate is also a punishment in itself. A general knowledge of Indian principles of natural justice say that no person shall be awarded two or more than two punishments. Sir, if Service-cum-Employment Certificate is withheld, it will render my tenure at ___________ (name of your company) purposeless. Therefore, the second punishment that is far severe than the first punishment.
5. In view of the above, it is my earnest request to you to issue necessary instructions to HR department to release the service-cum-employment certificate. I am hopeful that your good office will show clemency in this matter.
_____________ (your complete name as per records)
Note: - Submit the above application to the HR in the form of hard copy. Take signature on the duplicate copy and preserve it carefully. Please do not rely on e-mail communication. If HR refuses to accept the letter then put the letter in the envelope and give it to security. Obtain proper acknowledgement on the duplicate fopy for the receipt of the letter.
What if your company does not oblige you?: - If your management or HR remains inexorable and disregards your request, then you need to approach the labour officer of your area. How to approach him that we will discuss later.
All the best!
14th July 2017 From India, Bangalore
If you have all required communication documented, you may send a notice to company. Pls visit any civil court you will have advocates who will draft this notice and send to company on minimal fee. Pls ensure that the notice is registered in the civil court.
Feel free to ask if you need any help on this.
18th July 2017 From India, Noida