Hi Seniors,
I worked for an organization for a period of 2 years and resigned from the same on the pretext of my decision to pursue higher education outside India. While I was serving my notice period, the HR manager made a few false accusations and kept harassing me continuously, which led me to leave the company without serving the complete notice period.
I left the organization on 30 Jan 2012. Since then, I have tried talking to the higher management, written them several emails, but to no avail. They are not ready to complete my full and final settlement and are also not issuing my experience letter and relieving letter.
I would like to ask for suggestions on what can be done so that I can get my rights from the company after working hard there for 2 years. Ironically, I was quoted as one of the highest performers during my tenure, which completely changed during the notice period.
Also, I would like to know if there are legal terms that enforce the organization to complete the formalities and help me in getting my rights.
Many Thanks in Advance
Nisha
From India, Delhi
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20I worked for an organization for a period of 2 years and resigned from the same on the pretext of my decision to pursue higher education outside India. While I was serving my notice period, the HR manager made a few false accusations and kept harassing me continuously, which led me to leave the company without serving the complete notice period.
I left the organization on 30 Jan 2012. Since then, I have tried talking to the higher management, written them several emails, but to no avail. They are not ready to complete my full and final settlement and are also not issuing my experience letter and relieving letter.
I would like to ask for suggestions on what can be done so that I can get my rights from the company after working hard there for 2 years. Ironically, I was quoted as one of the highest performers during my tenure, which completely changed during the notice period.
Also, I would like to know if there are legal terms that enforce the organization to complete the formalities and help me in getting my rights.
Many Thanks in Advance
Nisha
From India, Delhi
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Dear Nisha,
As per your thread post, I have a couple of questions here:
- Have you resigned before leaving?
- Do you have any proof of such an email sent to the employer?
- How many times have you approached the management?
You have not served your notice period stipulated by the organization, so from that point of view, there might be some discrepancies for you to get the F&F done. For more detailed suggestions from our seniors, please let us know about the above.
From India, Visakhapatnam
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As per your thread post, I have a couple of questions here:
- Have you resigned before leaving?
- Do you have any proof of such an email sent to the employer?
- How many times have you approached the management?
You have not served your notice period stipulated by the organization, so from that point of view, there might be some discrepancies for you to get the F&F done. For more detailed suggestions from our seniors, please let us know about the above.
From India, Visakhapatnam
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Hi Sharmila,
Thanks for the response. Yes, I do have a copy of the resignation letter. I approached the management more than three times through email and also called them several times. As I had not served my notice period completely, they decided to deduct the salary accordingly, and I totally understand that. However, nothing has been released from their end yet.
I am fine if I don't get the money, but not receiving the letters is something very silly and stupid, considering it was a very fruitful relationship. I helped them in straightening up several processes and was considered to be an asset. In the last one month of notice, things changed.
Please advise.
Best regards,
Nisha
From India, Delhi
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Thanks for the response. Yes, I do have a copy of the resignation letter. I approached the management more than three times through email and also called them several times. As I had not served my notice period completely, they decided to deduct the salary accordingly, and I totally understand that. However, nothing has been released from their end yet.
I am fine if I don't get the money, but not receiving the letters is something very silly and stupid, considering it was a very fruitful relationship. I helped them in straightening up several processes and was considered to be an asset. In the last one month of notice, things changed.
Please advise.
Best regards,
Nisha
From India, Delhi
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Dear Ms. Nisha,
If you have corresponding letters sent to your employer, then send them another final requesting letter. This time, to avoid this situation, send it through registered post with acknowledgment.
Basically, if you have the appointment letter and the resignation letter accepted by the employer, that will serve as documentary evidence for your tenure. You may not need to provide the experience letter.
Finally, your query on legal proceedings is also apt. According to the Industrial Dispute Act of 1947, which covers the Industrial Employment (Standing Orders) of 1946, a company with over 100 employees has to obtain certification to define the conditions of employment. As per this, express or implied conditions should be reduced to writing until the resignation or termination for issuing the certificate. This certificate is known as a Service certificate or Experience Certificate. It is the obligation of the employer to provide such a certificate. Refusal or denial of which can be contested, and through an automatic route, it could lead to court interpretation.
P.S: If you have the resignation acceptance letter, you do not need to worry about the experience letter.
From India, Visakhapatnam
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If you have corresponding letters sent to your employer, then send them another final requesting letter. This time, to avoid this situation, send it through registered post with acknowledgment.
Basically, if you have the appointment letter and the resignation letter accepted by the employer, that will serve as documentary evidence for your tenure. You may not need to provide the experience letter.
Finally, your query on legal proceedings is also apt. According to the Industrial Dispute Act of 1947, which covers the Industrial Employment (Standing Orders) of 1946, a company with over 100 employees has to obtain certification to define the conditions of employment. As per this, express or implied conditions should be reduced to writing until the resignation or termination for issuing the certificate. This certificate is known as a Service certificate or Experience Certificate. It is the obligation of the employer to provide such a certificate. Refusal or denial of which can be contested, and through an automatic route, it could lead to court interpretation.
P.S: If you have the resignation acceptance letter, you do not need to worry about the experience letter.
From India, Visakhapatnam
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Hi Sharmila,
Thanks again for the detailed response. I do have the resignation acceptance letter, but my HR manager added another clause to it which states that I will have to provide my replacement before I leave. Unfortunately, a suitable candidate could not be found by the time I departed. Will this be a problem?
Furthermore, I am currently working as a research assistant at the university where I am studying, which is located outside India. I do not plan to seek employment in my home country for at least the next two years. Will documents from my previous organization in India still be necessary? Or are letters from my most recent employer the only ones of importance?
Best Regards,
Nisha
From India, Delhi
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Thanks again for the detailed response. I do have the resignation acceptance letter, but my HR manager added another clause to it which states that I will have to provide my replacement before I leave. Unfortunately, a suitable candidate could not be found by the time I departed. Will this be a problem?
Furthermore, I am currently working as a research assistant at the university where I am studying, which is located outside India. I do not plan to seek employment in my home country for at least the next two years. Will documents from my previous organization in India still be necessary? Or are letters from my most recent employer the only ones of importance?
Best Regards,
Nisha
From India, Delhi
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Dear Nisha,
Once again, any document that you possess will be important now or at any stage in your life. If you save them, you can provide them to the concerned at any point in time. Your resignation acceptance indicates that they accept your request to be relieved from your duties. It is not within your control if you couldn't find the right candidate to replace you. This does not seem like an issue to me. You can proceed with your studies without worry.
Remember to keep your documents saved. Even if you return back home, you may need them at some point.
From India, Visakhapatnam
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Once again, any document that you possess will be important now or at any stage in your life. If you save them, you can provide them to the concerned at any point in time. Your resignation acceptance indicates that they accept your request to be relieved from your duties. It is not within your control if you couldn't find the right candidate to replace you. This does not seem like an issue to me. You can proceed with your studies without worry.
Remember to keep your documents saved. Even if you return back home, you may need them at some point.
From India, Visakhapatnam
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Dear Ms. Nisha,
You will benefit from the Standing Orders Act only if your establishment has certified standing orders. If not, you can obtain a service certificate under the model standing orders applicable in the state, provided the SO Act is applicable to your establishment and you are a workman. Otherwise, the outcome will depend on the terms of appointment and company policy.
With regards,
Varghese Mathew
BIL, PGDPM
Labour Law/HR Advisor
varghese21283@gmail.com
From India, Thiruvananthapuram
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You will benefit from the Standing Orders Act only if your establishment has certified standing orders. If not, you can obtain a service certificate under the model standing orders applicable in the state, provided the SO Act is applicable to your establishment and you are a workman. Otherwise, the outcome will depend on the terms of appointment and company policy.
With regards,
Varghese Mathew
BIL, PGDPM
Labour Law/HR Advisor
varghese21283@gmail.com
From India, Thiruvananthapuram
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Hi Matthew,
I am not very sure that the organization was covered under the Standing Orders Act. Also, if I have to make a guess, it was definitely not covered under this. So, it appears this act won't be helping me much.
But according to company terms, I had to serve a 45-day notice period, of which I could complete 20 days, and I had a few leaves (14) to be adjusted against the same. The organization deducted the money for the rest of the period from my salary.
I even received the calculation of the full and final amount from the finance department. However, after that, no action was taken, and it's been over 7 months. The average period for full and final settlements in that company was 45 days.
Everything has been left to the discretion of the HR manager, who happened to be my boss and was the reason why I left the work during the notice period itself. Even writing to the top management was of no help.
Please advise.
Best Regards,
Nisha
From India, Delhi
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I am not very sure that the organization was covered under the Standing Orders Act. Also, if I have to make a guess, it was definitely not covered under this. So, it appears this act won't be helping me much.
But according to company terms, I had to serve a 45-day notice period, of which I could complete 20 days, and I had a few leaves (14) to be adjusted against the same. The organization deducted the money for the rest of the period from my salary.
I even received the calculation of the full and final amount from the finance department. However, after that, no action was taken, and it's been over 7 months. The average period for full and final settlements in that company was 45 days.
Everything has been left to the discretion of the HR manager, who happened to be my boss and was the reason why I left the work during the notice period itself. Even writing to the top management was of no help.
Please advise.
Best Regards,
Nisha
From India, Delhi
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Dear Nisha,
If an employee has served the notice period and the rest of the days the salary has been adjusted along is fine. According to the ID Act, it says that an employee awaiting a certificate for more than 45 days will be liable to file a petition. Before that, correspondence should be made clear to the employer that your letter would be a final confrontation to make them understand that this would be taken further for appeal.
From India, Visakhapatnam
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If an employee has served the notice period and the rest of the days the salary has been adjusted along is fine. According to the ID Act, it says that an employee awaiting a certificate for more than 45 days will be liable to file a petition. Before that, correspondence should be made clear to the employer that your letter would be a final confrontation to make them understand that this would be taken further for appeal.
From India, Visakhapatnam
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Dear Nisha,
You can file a complaint with the concerned labor office against your company to receive your full and final settlement (f & f). Once you have filed a complaint with the labor office, they will issue a letter to your company, and your f & f will be settled in the presence of a labor inspector.
Your settlement will be completed within one month of filing the complaint.
Sandeep Mishra
From India, Delhi
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You can file a complaint with the concerned labor office against your company to receive your full and final settlement (f & f). Once you have filed a complaint with the labor office, they will issue a letter to your company, and your f & f will be settled in the presence of a labor inspector.
Your settlement will be completed within one month of filing the complaint.
Sandeep Mishra
From India, Delhi
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Hi Nisha,
Your last message is self-explanatory for all the issues you are undergoing. From your message, it is evident that there was a 45-day notice period to be served; however, you have given 20 days and wanted the rest to be probably adjusted against the leaves left at your disposal.
As far as I know, being in HR & ADMN for the last 20 years, what I can suggest is that giving the proper notice period is a must for a smooth handover, especially if the resource is at a senior level. Hence, this would have upset the HR/Management in this regard.
However, two or three things can suffice to prove you were with them: the initial offer letter and relieving letter, the initial offer letter, and salary slip for the working time till the last date, and the final settlement paper where signatures of both parties are obtained. I hope and am sure you have copies of all these, including your resignation letter to prove your period of working with the organization.
I suggest patching up a little, as we have much more to lose than the organization. Have a straightforward talk to set things right and finish off the formalities. If possible, help them find a suitable replacement. The world is strange at times; there are people like me looking around for jobs and don't get them, and there are also companies on the other side that do not get candidates for their requirements.
Cheers and best wishes, these are my views on the issue.
S.S. Rao
From India, Visakhapatnam
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Your last message is self-explanatory for all the issues you are undergoing. From your message, it is evident that there was a 45-day notice period to be served; however, you have given 20 days and wanted the rest to be probably adjusted against the leaves left at your disposal.
As far as I know, being in HR & ADMN for the last 20 years, what I can suggest is that giving the proper notice period is a must for a smooth handover, especially if the resource is at a senior level. Hence, this would have upset the HR/Management in this regard.
However, two or three things can suffice to prove you were with them: the initial offer letter and relieving letter, the initial offer letter, and salary slip for the working time till the last date, and the final settlement paper where signatures of both parties are obtained. I hope and am sure you have copies of all these, including your resignation letter to prove your period of working with the organization.
I suggest patching up a little, as we have much more to lose than the organization. Have a straightforward talk to set things right and finish off the formalities. If possible, help them find a suitable replacement. The world is strange at times; there are people like me looking around for jobs and don't get them, and there are also companies on the other side that do not get candidates for their requirements.
Cheers and best wishes, these are my views on the issue.
S.S. Rao
From India, Visakhapatnam
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Normally, as per the terms of appointment, a contract may be terminated at any time by either side by serving the prescribed notice period or pay in lieu thereof. Since, in the instant case, you have submitted your letter of resignation and the same has been accepted by the Management, they are legally bound to release you from the date specified in the notice, by making necessary adjustments against the shortage in the notice period against your pay. They are legally bound to make a full and final settlement of your dues. Please serve a legal notice threatening to take legal action if your dues are not settled within a specified period, say the next 15 days. You have a very strong case and you have nothing to worry about.
A.K. Maitra, M.Com; LL.B; A.C.A; A.C.S; M.I.M.A Retd. G.M. (Law) National Fertilizers Ltd. (A Mini-Ratna Central P.S.U.)
From India, Delhi
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A.K. Maitra, M.Com; LL.B; A.C.A; A.C.S; M.I.M.A Retd. G.M. (Law) National Fertilizers Ltd. (A Mini-Ratna Central P.S.U.)
From India, Delhi
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Dear Members/Maitra Ji,
I have a slightly different perspective on the salary in lieu of notice that an employee can receive. If accepted by the management, this arrangement can only occur with the management's agreement; otherwise, the employee is required to fulfill their notice period as per the terms of the contract. In most private companies, leaves are rarely adjusted, and if it does happen, it is usually limited to earned or accrued leave. Furthermore, if the management insists on the full notice period to be served by the employee, I believe the management is well within their rights to make such a request. This is crucial for proper knowledge transfer, finding a replacement, and ensuring continuity during the transition period.
Thank you.
From India, Visakhapatnam
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I have a slightly different perspective on the salary in lieu of notice that an employee can receive. If accepted by the management, this arrangement can only occur with the management's agreement; otherwise, the employee is required to fulfill their notice period as per the terms of the contract. In most private companies, leaves are rarely adjusted, and if it does happen, it is usually limited to earned or accrued leave. Furthermore, if the management insists on the full notice period to be served by the employee, I believe the management is well within their rights to make such a request. This is crucial for proper knowledge transfer, finding a replacement, and ensuring continuity during the transition period.
Thank you.
From India, Visakhapatnam
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Dear Members,
First of all, thank you for your valuable suggestions and for showing interest in the issue.
Mr. Sandeep: Yes, I am now considering this option after the inspiration I have received from many senior members here. Hopefully, I will be able to achieve some results from this.
Mr. Rao: I was working in the HR department, and the fact that I was planning to pursue further education was clearly communicated to my superiors well in advance, in fact, over six months before I resigned. Regarding the adjustment of leaves, this was also mentioned in my contract and mutually agreed upon at the time of my resignation. Unfortunately, I had to leave a week before completing the notice period as agreed, but I was prepared to compensate for that with no hard feelings at all. I had been doing the same for many other employees who left before me.
As for handing over responsibilities, I had taken care of it well in advance, and it was already completed. I believe this addresses your concern.
I do have the initial letters, but unfortunately, I could not obtain the final papers as I had to leave in a hurry and wasn't in the country for long after that.
Mr. Maitra: Thank you very much, sir, for the advice you have given. I would personally like to discuss the case with you if you allow. Your advice was truly valuable for the issue I am facing.
Ms. Sharmila: Thank you again, Sharmila, for addressing the query. :)
Best Regards to all the senior members
Nisha
From India, Delhi
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First of all, thank you for your valuable suggestions and for showing interest in the issue.
Mr. Sandeep: Yes, I am now considering this option after the inspiration I have received from many senior members here. Hopefully, I will be able to achieve some results from this.
Mr. Rao: I was working in the HR department, and the fact that I was planning to pursue further education was clearly communicated to my superiors well in advance, in fact, over six months before I resigned. Regarding the adjustment of leaves, this was also mentioned in my contract and mutually agreed upon at the time of my resignation. Unfortunately, I had to leave a week before completing the notice period as agreed, but I was prepared to compensate for that with no hard feelings at all. I had been doing the same for many other employees who left before me.
As for handing over responsibilities, I had taken care of it well in advance, and it was already completed. I believe this addresses your concern.
I do have the initial letters, but unfortunately, I could not obtain the final papers as I had to leave in a hurry and wasn't in the country for long after that.
Mr. Maitra: Thank you very much, sir, for the advice you have given. I would personally like to discuss the case with you if you allow. Your advice was truly valuable for the issue I am facing.
Ms. Sharmila: Thank you again, Sharmila, for addressing the query. :)
Best Regards to all the senior members
Nisha
From India, Delhi
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Termination of employment depends upon terms of engagement. As per standard terms, such type of contract may be terminated by either party by complying with the notice period, say one to three months, or pay in lieu thereof. Once an employee has resigned, the employer is bound to accept it. In case the said employee has given a shorter notice, that can be adjusted against his notice pay. But the employer has no right to prevent you from accepting a better opportunity. It is simply a vindictive attitude on their part. They can, at most, request an employee to continue till completion of the notice period but cannot compel him.
In view of the above, please take appropriate action in consultation with a good lawyer on service matters along with all relevant documents. Apparently, you have a very strong case and you should fight for the same.
From India, Delhi
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In view of the above, please take appropriate action in consultation with a good lawyer on service matters along with all relevant documents. Apparently, you have a very strong case and you should fight for the same.
From India, Delhi
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If the HR manager is not providing the certificate, you can approach his bosses. If they are also not helping, it can be concluded that it is a collective decision. Then, the only hope is court intervention if there is a breach of contract.
VARGHESE MATHEW
Labor Law Adviser TVPM
09961266966
From India, Thiruvananthapuram
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VARGHESE MATHEW
Labor Law Adviser TVPM
09961266966
From India, Thiruvananthapuram
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Ms. Nisha,
When you have the Full and Final calculation from the Accounts department, it is a very clear proof that you have served the notice period through 20 days working, 14-day leave credit adjustment, and balance recovery from the amount payable to you.
Your HR Manager, under no circumstances, has the right to deny your relieving from the services of the company and cannot deny you your full and final settlement and the service certificate. If he is persisting with this wrong practice, he will be in soup. His asking you for your replacement is foolish and unreasonable, why should you do it? Why is he there in the company, if not for arranging manpower? Issue a registered notice enclosing copies of your resignation letter, resignation acceptance letter, and the full and final settlement details obtained from Accounts and demand your settlement amount and the Service Certificate. Keep copies of all these documents for your future help/reference, in case he mentions anything negative in your service certificate.
Your HR Manager does not seem to be a prudent and reasonable man. He cannot take anything personally, go out of the way to harass you. You can file a case against him and make your company a party to it. Management itself will question him for his wrongdoing then.
Wish you all the best.
From India, Eluru
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When you have the Full and Final calculation from the Accounts department, it is a very clear proof that you have served the notice period through 20 days working, 14-day leave credit adjustment, and balance recovery from the amount payable to you.
Your HR Manager, under no circumstances, has the right to deny your relieving from the services of the company and cannot deny you your full and final settlement and the service certificate. If he is persisting with this wrong practice, he will be in soup. His asking you for your replacement is foolish and unreasonable, why should you do it? Why is he there in the company, if not for arranging manpower? Issue a registered notice enclosing copies of your resignation letter, resignation acceptance letter, and the full and final settlement details obtained from Accounts and demand your settlement amount and the Service Certificate. Keep copies of all these documents for your future help/reference, in case he mentions anything negative in your service certificate.
Your HR Manager does not seem to be a prudent and reasonable man. He cannot take anything personally, go out of the way to harass you. You can file a case against him and make your company a party to it. Management itself will question him for his wrongdoing then.
Wish you all the best.
From India, Eluru
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Relieving & Experience Letter.doc