Hi All, Recently, I resigned from a company in Hyderabad. The notice period was initially 2 months, but I left the company 10 days early. According to the appointment letter, there was a buyout option, and they mentioned I needed to stay for 3 months when I inquired with the Director for undisclosed reasons. I decided to leave because there was no tentative relieving date, and I had already fulfilled all their mandatory demands, shown the new offer letter, and completed the knowledge transfer. When I attempted to contact the HR, he refused to meet with me.
After leaving the company, I sent an email requesting my relieving letter. The HR informed me that they could only provide a termination letter and not a relieving letter as per the policy.
Can any of you suggest how to proceed? Should I consider legal action? If so, whom should I contact, and what would be the cost, or should I simply let the issue go and move forward calmly?
Thanks in advance.
From India, Hyderabad
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After leaving the company, I sent an email requesting my relieving letter. The HR informed me that they could only provide a termination letter and not a relieving letter as per the policy.
Can any of you suggest how to proceed? Should I consider legal action? If so, whom should I contact, and what would be the cost, or should I simply let the issue go and move forward calmly?
Thanks in advance.
From India, Hyderabad
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After one month of service, you will be deemed to have been relieved as generally in the Shops and Establishments Act, this is the notice period provided. Any contract contrary to it is void. Approach the inspector under the Act to get your relieving letter. If it does not materialize, obtain it through the civil court by seeking an interim mandatory injunction.
Thanks,
Sushil
From India, New Delhi
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225Thanks,
Sushil
From India, New Delhi
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No, that is a wrong statement from what I know of the law.
If the employee has signed an appointment letter (or deemed to have accepted by working in the company after getting his appointment letter), then the notice period of 2 months is applicable to him. There is nothing in the act that says notice period of more than 2 months is invalid. The wording used is notice period is at least 1 month.
From India, Mumbai
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If the employee has signed an appointment letter (or deemed to have accepted by working in the company after getting his appointment letter), then the notice period of 2 months is applicable to him. There is nothing in the act that says notice period of more than 2 months is invalid. The wording used is notice period is at least 1 month.
From India, Mumbai
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Dear Saswata BanerjeeJi, Though it is the appropriate solution to abide by the terms and conditions of employment and to have a golden handshake with the employer to get a relieving letter, in exceptional situations where an employee does not want to adhere to the contract and wants to pay notice pay in lieu of serving the notice period, can the employer seek an injunction against him to leave the job and serve the notice period? The answer is no. After having tendered the notice pay amount by the employee, unless the employer has contemplated a domestic inquiry against the employee, the employer should generally relieve him.
If an employee has given the notice of resignation and is even ready to pay the shortfall of the notice period, after the expiry of one month, an employee cannot be forced to work under the guise of terms and conditions which are contrary to the Shops and Establishment Act, and if the employee happens to be a workman, then even contrary to Section 25F notice period laid under the Industrial Disputes Act. Such a term of contract of service is illegal on the face of it, and one cannot say whether the employee "resigned properly or according to the agreed T&Cs and having the acceptance of it." After the employee has tendered the resignation, the onus is on the employer to reject the resignation if any disciplinary action was contemplated against the employee. The handing over or taking over has to be done by the employer within the statutory notice period. If the employee absconds with any articles of the employer, he is liable for prosecution under Section 406 IPC. There are a number of threads on this site in which harassment of employees by even ex-employers is noticed, stating that they will spoil their future by giving wrong feedback because of not rendering service as per the agreement. In all Shops and Establishment Acts, there is generally a provision that any agreement which is contrary to the provisions of the Act, unless more beneficial, is void.
Ultimately, the court has to examine the legality of issues on the touchstone of statutory provisions only. The following extracts of Apex Court decisions will clarify the doubts:
a) The Management of Marina Hotel Vs. The Workmen 1962 (3) SCR 1 The award of the Industrial Tribunal holding entitlement to 15 days casual-cum-sickness leave was held to be illegal being contrary to the provisions of Section 22 of the Delhi Shops and Establishments Act, 1954, which contained a peremptory direction of the Legislature for leave not exceeding 12 days only being allowed.
Similarly, it is stated that in all Shops and Establishment Acts, there is generally a provision that any agreement which is contrary to the provisions of the Act, unless more beneficial, is void.
b) Supreme Court of India - Glaxo Laboratories vs The Presiding Officer, Labour decided on 6 October, 1983 Equivalent citations: 1984 AIR 505, 1984 SCR (1) 230 “In this connection, we may also refer to Western India Match Company Ltd. v. Workmen in which this Court held that any condition of service if inconsistent with certified standing orders, the same would not prevail and the certified standing orders would have precedence over all such agreements.”
c) Patna High Court - Lilawati Devi And Ors. vs Central Coalfields Ltd. on 9 October, 1991 “52. It is now well known that the provisions contained in the certified Standing Order have the force of law. The provisions of the Standing Order certified under the Industrial Employment (Standing Orders) Act, 1946, would prevail over the contract of service. Violations of the provisions of the certified Standing Order in the matter of disciplinary action against a workman would render the order of dismissal passed against him void and of no effect. In this situation, there cannot be any doubt that Jaiswal became entitled to damages for wrongful termination of contract of service.”
c) Bombay High Court - Ltd. (Denim Division) vs Praful Warade on 15 April, 2010 “In any case, in view of the finding that the said clause 29 is not relevant and cannot control the natural sweep envisaged for clause 4A by the legislature, it is apparent that the reliance upon the provisions of Clause 29 by petitioners to urge that the period of probation of six months as provided for in the contract of service must prevail, is misconceived and unsustainable.”
d) Supreme Court of India - N.S. Giri vs The Corporation Of City Of ... on 14 May, 1999 “8. As regards sick leave and casual leave, however, the position is that Section 22 fixed a maximum of 12 days total leave for sickness or casual leave with full wages. We do not see how this peremptory direction of the Legislature can be disregarded by a Tribunal.”
e) Delhi Transport Corporation vs D.T.C. Mazdoor Congress on 4 September, 1990 “Under and as a part of the said Act, model standing orders are set out, and Standing Order No. 13 provides for simple termination of employment by giving one month's notice etc. Similarly, there are provisions under various Shops and Establishments Acts of different States providing for termination of employment of a permanent employee after giving one month's notice or pay in lieu of notice. Attention of this Court was invited to s. 30 of the Delhi Shops and Establishments Act.”
In some State Shops and Establishment Acts and Rules, there is a provision of notice period by the employer only.
If an employee is governed by the Bombay Shops and Establishment Act and Rules and was under probation and after having worked for less than six months, he will be treated to be under probation vide rule 3 of the said Bombay rules. Under rule 4, services of a probationer can be terminated at any time without any notice. A contractual clause denuding the right to resign immediately without notice will be discriminatory and arbitrary. Any appointment letter contrary to the Act and rules unless it is more beneficial to the employee is void as per section 69 of the Act. Further, under the Payment of Wages Act as applicable under section 38 of the Bombay Act, no deduction of any kind is permissible unless authorized under the Act. The employer cannot make any recovery under the garb of notice period recovery which is not valid.
If an employee is working in Bangalore, he is governed by the Karnataka Shops and Establishment Act. Under section 39 of it, an employer is required to pay only one month's notice or pay in lieu thereof while terminating the employee's services. If the employer has been enabled to pay wages in lieu of notice period pay, it will be arbitrary and discriminatory if an employee is denuded of that contractual clause. A clause enabling one party only to pay the notice pay will be contrary to section 23 of the Contract Act as it may amount to discrimination and arbitrariness and bonded labour which is contrary to public policy under the Constitution of India. Further, for example, if the person happens to be covered under the definition of “workman” defined under the ID Act, then the employer is enabled to give one month's notice or wages in lieu of notice at the time of retrenchment, besides other amounts, it will be discriminatory if a workman is asked to give notice pay of more than one month in lieu of notice period or even asked to serve notice period by deferring his relieving. The clauses have to be equitable.
If a person is covered as a workman in an establishment in Mumbai, he will be governed by Industrial employment model standing orders by virtue of section 38-B of the Bombay shops and establishment Act. Under para 13 of the model orders, no notice is required to be given by a workman with less than three months' service. Any contract contrary to it is void. So no notice is to be given by such a workman. Any contract contrary to it is void.
I hope the above clarifies the position.
Thanks Regards, Sushil
From India, New Delhi
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If an employee has given the notice of resignation and is even ready to pay the shortfall of the notice period, after the expiry of one month, an employee cannot be forced to work under the guise of terms and conditions which are contrary to the Shops and Establishment Act, and if the employee happens to be a workman, then even contrary to Section 25F notice period laid under the Industrial Disputes Act. Such a term of contract of service is illegal on the face of it, and one cannot say whether the employee "resigned properly or according to the agreed T&Cs and having the acceptance of it." After the employee has tendered the resignation, the onus is on the employer to reject the resignation if any disciplinary action was contemplated against the employee. The handing over or taking over has to be done by the employer within the statutory notice period. If the employee absconds with any articles of the employer, he is liable for prosecution under Section 406 IPC. There are a number of threads on this site in which harassment of employees by even ex-employers is noticed, stating that they will spoil their future by giving wrong feedback because of not rendering service as per the agreement. In all Shops and Establishment Acts, there is generally a provision that any agreement which is contrary to the provisions of the Act, unless more beneficial, is void.
Ultimately, the court has to examine the legality of issues on the touchstone of statutory provisions only. The following extracts of Apex Court decisions will clarify the doubts:
a) The Management of Marina Hotel Vs. The Workmen 1962 (3) SCR 1 The award of the Industrial Tribunal holding entitlement to 15 days casual-cum-sickness leave was held to be illegal being contrary to the provisions of Section 22 of the Delhi Shops and Establishments Act, 1954, which contained a peremptory direction of the Legislature for leave not exceeding 12 days only being allowed.
Similarly, it is stated that in all Shops and Establishment Acts, there is generally a provision that any agreement which is contrary to the provisions of the Act, unless more beneficial, is void.
b) Supreme Court of India - Glaxo Laboratories vs The Presiding Officer, Labour decided on 6 October, 1983 Equivalent citations: 1984 AIR 505, 1984 SCR (1) 230 “In this connection, we may also refer to Western India Match Company Ltd. v. Workmen in which this Court held that any condition of service if inconsistent with certified standing orders, the same would not prevail and the certified standing orders would have precedence over all such agreements.”
c) Patna High Court - Lilawati Devi And Ors. vs Central Coalfields Ltd. on 9 October, 1991 “52. It is now well known that the provisions contained in the certified Standing Order have the force of law. The provisions of the Standing Order certified under the Industrial Employment (Standing Orders) Act, 1946, would prevail over the contract of service. Violations of the provisions of the certified Standing Order in the matter of disciplinary action against a workman would render the order of dismissal passed against him void and of no effect. In this situation, there cannot be any doubt that Jaiswal became entitled to damages for wrongful termination of contract of service.”
c) Bombay High Court - Ltd. (Denim Division) vs Praful Warade on 15 April, 2010 “In any case, in view of the finding that the said clause 29 is not relevant and cannot control the natural sweep envisaged for clause 4A by the legislature, it is apparent that the reliance upon the provisions of Clause 29 by petitioners to urge that the period of probation of six months as provided for in the contract of service must prevail, is misconceived and unsustainable.”
d) Supreme Court of India - N.S. Giri vs The Corporation Of City Of ... on 14 May, 1999 “8. As regards sick leave and casual leave, however, the position is that Section 22 fixed a maximum of 12 days total leave for sickness or casual leave with full wages. We do not see how this peremptory direction of the Legislature can be disregarded by a Tribunal.”
e) Delhi Transport Corporation vs D.T.C. Mazdoor Congress on 4 September, 1990 “Under and as a part of the said Act, model standing orders are set out, and Standing Order No. 13 provides for simple termination of employment by giving one month's notice etc. Similarly, there are provisions under various Shops and Establishments Acts of different States providing for termination of employment of a permanent employee after giving one month's notice or pay in lieu of notice. Attention of this Court was invited to s. 30 of the Delhi Shops and Establishments Act.”
In some State Shops and Establishment Acts and Rules, there is a provision of notice period by the employer only.
If an employee is governed by the Bombay Shops and Establishment Act and Rules and was under probation and after having worked for less than six months, he will be treated to be under probation vide rule 3 of the said Bombay rules. Under rule 4, services of a probationer can be terminated at any time without any notice. A contractual clause denuding the right to resign immediately without notice will be discriminatory and arbitrary. Any appointment letter contrary to the Act and rules unless it is more beneficial to the employee is void as per section 69 of the Act. Further, under the Payment of Wages Act as applicable under section 38 of the Bombay Act, no deduction of any kind is permissible unless authorized under the Act. The employer cannot make any recovery under the garb of notice period recovery which is not valid.
If an employee is working in Bangalore, he is governed by the Karnataka Shops and Establishment Act. Under section 39 of it, an employer is required to pay only one month's notice or pay in lieu thereof while terminating the employee's services. If the employer has been enabled to pay wages in lieu of notice period pay, it will be arbitrary and discriminatory if an employee is denuded of that contractual clause. A clause enabling one party only to pay the notice pay will be contrary to section 23 of the Contract Act as it may amount to discrimination and arbitrariness and bonded labour which is contrary to public policy under the Constitution of India. Further, for example, if the person happens to be covered under the definition of “workman” defined under the ID Act, then the employer is enabled to give one month's notice or wages in lieu of notice at the time of retrenchment, besides other amounts, it will be discriminatory if a workman is asked to give notice pay of more than one month in lieu of notice period or even asked to serve notice period by deferring his relieving. The clauses have to be equitable.
If a person is covered as a workman in an establishment in Mumbai, he will be governed by Industrial employment model standing orders by virtue of section 38-B of the Bombay shops and establishment Act. Under para 13 of the model orders, no notice is required to be given by a workman with less than three months' service. Any contract contrary to it is void. So no notice is to be given by such a workman. Any contract contrary to it is void.
I hope the above clarifies the position.
Thanks Regards, Sushil
From India, New Delhi
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