Can a Company Deny an Experience Letter for Skipping Notice Period? Seeking Advice

I left my previous organization in September 2008 and did not serve the notice period as my new company wanted me to join as soon as possible. At that time, I did not take the experience letter. Recently, the previous company has been taken over by another company. Now, when I am trying to contact them for the experience letter and am ready to pay the recoveries as per the policy, I am being told that, as per the new policies, employees who did not serve the notice period will not be given any relieving letter.

Seeking Advice on Company Policies for Experience Letters

Can you please advise if there is any such rule that allows a company to deny giving an experience letter/relieving letter to the employee? How can I pursue the case so that I can get my relieving letter?

Thanks & Regards,
Amit Sood

Hi Amit ji, every company does have its own policies. Regarding obtaining the experience letter, you can personally approach the HR of that company or other seniors and request them to issue one.

Thanks,
Bijay

There must be a law governing this issue; the government or law cannot simply leave it to the company's discretion. Can anyone suggest if there is a law against this?

Thanks,

In most companies, employees who don't serve the proper notice period are not given an Experience Letter or Relieving Letter by the employer.

You can speak to your current HR person and explain to them that you were asked to join this company immediately, so you were not able to serve the notice period. As a result, the previous company is not providing the experience letter. It is always advisable to tell them the truth. In case they inquire about the years of experience, you could show them the salary slip or bank statement where your monthly salary was deposited.

Just a piece of advice: never leave without serving the notice period again, or you will face a similar problem.

Regards,
Anita

Analyzing the Expectation for an Experience Certificate

I feel your expectation is wrong. Let us analyze:

• Left in September 2008
• Did not serve notice
• Did not pay notice amount then
• After 4+ years, when the same company is being acquired by a new company, you are expecting them to issue an experience certificate! Why?

Your statement, "At that time I did not take the experience letter" - the ball was in your court. Even if you had wanted it then, it was the company that could negotiate, not you. I have never come across any such law but suggest waiting for others to shed some light on it. Otherwise, it is always a company policy that drives it.

Regards

In my opinion, getting an experience certificate and a relieving letter is the basic right of every employee or ex-employee. No one has the right to spoil your future by denying these documents. You can approach your previous company in writing; please maintain all communications. If you still require further assistance, you can proceed to approach statutory bodies or labor courts.

With regards,
Patrick

You are within your right to demand an experience letter and also resign without serving the notice period by compensating through surrendering leave or money in lieu of the notice period. Did they send you a claim notice for compensation? If they have, that itself becomes proof of service rendered. If not, send them a letter seeking full and final settlement. They will lay their claim. If they do not, then send them a legal notice seeking full and final settlement, stating the period of service rendered. Normally, employers would respond to the legal notice when sent to the CEO of the company. Since you are willing to pay and they have not sent you the full and final settlement statement, you are within your rights to claim that.

Many times, these kinds of policies of not issuing relieving letters are created by a crooked HR head and not by the CEO. There are numerous Supreme Court judgments stating that the full and final settlement has to be made within 15 days of leaving the service. Full and final settlement means the company has to give a statement of accounts, and if any due is there from the employee, then the claim needs to be made. Once the settlement is made by way of payment by the employee, the company has to issue the service certificate. The honorable Supreme Court has also mentioned that the employer can only give the extract of the service record and cannot qualify their negative opinion of an employee in the service certificate without a due process of inquiry as per law since merit is an opinion and need not be a fact.

Hope this clarifies that you don't have to be at the mercy of unscrupulous employers who do not have good practices.

Mr. Patrick and Mr. Rajesh are correct. No employer can have a policy that is arbitrary and prejudicial towards the future of an employee. At the same time, it must be an occasion for you to learn a lesson: that you have to keep the commitment that you make with employers.

Best of Luck,

Regards

Dear Mr. Amit and All Contributors to this Thread,

Greetings in the New Year 2013. The issue raised by Mr. Amit is that he left the services of his previous company without giving any notice in 2008, and now in the year 2013, he needs an experience certificate from the previous employer. I will try to explain the rules based on the principles of Natural Justice.

Understanding the Contract of Service

When a person joins a company, a contract of service is created. An appointment letter is sufficient to draw the inference of a contract. An employee, during the period of service, is required to follow the conditions of service, whether written or implied. Since Mr. Anil has himself stated that he did not serve the notice, it is evident that Mr. Amit was aware of the conditions of service. Mr. Amit has violated the conditions of service by not serving the notice and leaving the service of the previous employer. It is to be remembered that an employer hires employees to run the activities of his business in an uninterrupted manner. For this reason, it is a widely accepted practice in the industry that a condition is laid down for one month's notice or salary in lieu thereof when an employee wants to leave the service. In the event an employee leaves the job without due notice, the employer has to face a lot of difficulties to efficiently carry out his business activities. In such circumstances, it becomes clear that the employer is put to hardships and inconvenience by such acts of employees. Therefore, Mr. Amit will not be justified in adopting any legal course as suggested by one of the contributors.

Legal Implications and Suggestions

The other suggestion is also not legally sound that Mr. Amit may demand settlement of accounts from the previous employer. Mr. Amit left the service in the year 2008. It is now more than four years, and claiming settlement of accounts may attract the law of limitation. Not only this, the employer may claim damages and interest on the amount in lieu of notice. The amount of damages will be substantiated by the employer.

In the context of the circumstances explained above, I would suggest that Mr. Amit may make a request on humanitarian grounds for getting an experience certificate from the previous employer. The law will not help him but put him in more hot waters.

I appreciate the views of Ms. Anita and Mr. Hiral.

With good wishes to all.

Regards,
C.M. Lal Srivastava

[Email Removed For Privacy Reasons]
[Phone Number Removed For Privacy Reasons]

Mr. Srivastva has pointed out correctly and presented the facts. While there is a legal course of action available, considering Mr. Amit's case, it is not advisable to pursue legal action. However, on humanitarian grounds, his previous employers can be approached and convinced. I believe and have confidence that no HR professional would jeopardize an employee's future over issues related to an experience letter or a release letter.

Most importantly, employees and employers are the binding forces of the industry, and the bond of faith and integrity sustains its vitality. Let Mr. Amit understand this fact and realize the mistakes made.

Thanks,
Bijay

Understanding Notice Period and Legal Rights in Employment Contracts

There is no violation of contract since the contract states notice period or pay in lieu of notice period. An employee is within his right to choose what he desires. Similarly, the law of limitation does not apply for employment as per the Supreme Court judgment given in SBI vs S R Ramanujachari. In this case, the employee resigned and asked the bank to adjust the notice period against leave due and balance to be paid for. The bank insisted on the serving of the notice period. Obviously, the bank did not issue a relieving order. (Incidentally, a relieving order is required only by Public Sector and government, and many private companies do not require them). The employee had set up his own business, so he did not bother. The bank owes the employee the final settlement.

After about five and a half years, the employee asked for his settlement, and the bank stated the claim is barred by limitation and also that the employee violated the contract by not serving the notice period. The employee decided to go to court, and at every court, he won the case. Finally, the SC gave the judgment, and the two things it highlighted are:

- There is no violation of contract when an employee chooses not to serve the notice period since in the terms of appointment made by the employer, a choice is given, either to serve the notice period or pay compensation in lieu of notice. And the employee chose to pay. The choice is left to the employee here since the person working is the employee and the contract was made by the employer, implying that the choice is with the employee when making the choice in terms of this clause.

- The law of limitation does not apply to appointments/employments in India, and the spirit of the labor law will prevail.

There are numerous cases where the courts have given judgments based on this premise. There have been some lawyers and companies who have been trying to invoke the appointment of employees as if it's a contract. The Supreme Court has also observed that when there is an endeavor today to abolish the contract employment act itself, trying to assign the appointment/employment as a contract would be a paradox. So it's very clear that the spirit of the labor laws will prevail. This was also quoted once again by the SC in the now-famous Titan Industries vs Vasant Nangia case when Titan sued their former COO by applying the appointment under the contracts act violated the contract of employment. The SC clearly stated that irrespective of the level of the employee, the spirit of labor law will apply and not the contract act. And also that under the contract act you don't pay PF, Gratuity, etc., since the intent of the contract act was not to cover employees.

So you are within your rights to demand. Don't have to bow down in front of unscrupulous employers. We are a free country. The British left more than 65 years back. You don't have to lose your self-esteem and beg under 'humanitarian' conditions. It's your right, and demand it with courage.

Thank you, Mr. Srivastava, for your valuable input. However, there is a small correction. I am sorry if from my post it appeared that I did not notify the company before leaving. However, I resigned from the company officially and submitted my resignation via my official email. I also mentioned in the same that I will not be able to serve the notice period and requested my SDL to have the notice period waived off (if possible).

Notice Period and Contract Terms

Regarding the appointment letter, it is always mentioned in the letter that either the employee or employer can break the contract of employment by serving the appropriate notice period as mentioned in the appointment letter. In case this is not possible, it can be done by payment in lieu of the notice period.

The only delay from my side was that I did not follow up with the company in a timely manner for the relieving letter.

Thanks,

Thank you for the open-minded reception of my views. I suggest approaching your previous employer on humanitarian grounds; they are likely to agree.

Legal Considerations

Regarding the legal battle and the opinion provided by Mr. Rajesh Kaushik, I must clarify that the SBI case is a government matter, and the regulations of government departments cannot be directly applied to the private sector. The waiver of the notice period is at the employer's discretion. However, pursuing legal action at this point is unlikely to benefit you. The process could be prolonged, and in the meantime, your current employer may take actions that could put you at a disadvantage.

Wishing you good luck. Make a carefully considered decision by using your judgment.

Regards,
Srivastava, CM Lal