Hi,
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
From India, Vadodara
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382Mr. 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
From India, Vadodara
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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:
a) that 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.
b) 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 now 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.
From United+States, San+Francisco
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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:
a) that 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.
b) 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 now 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.
From United+States, San+Francisco
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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).
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,
From India, Mumbai
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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,
From India, Mumbai
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Dear Amit,
Thank you for the open-minded reception of my views. I suggest approaching your previous employer on humanitarian grounds; they are likely to agree.
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.
Srivastava, CM Lal
From India, New Delhi
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Thank you for the open-minded reception of my views. I suggest approaching your previous employer on humanitarian grounds; they are likely to agree.
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.
Srivastava, CM Lal
From India, New Delhi
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Notice Period Extension Letter Format.doc
Notice Period Issue.zip