Dear Sir, I worked in a company for 3 years and 9 months. I use to have day in and out trouble with my immediate supervisor in my daily work. He basically harassed me with work. The company had an agreement that restricts me from joining any competition for a period of 24 months after resigning from the company. Now, I got a good opportunity from a competitive company which is definitely better for my career growth. I have given resignation from my services with a notice period of one month, as per company policy. The GM-HR immediately provided me a letter on the next day for not reporting to duties further after taking away all company belongings for me. The GM - HR threatened me to ruin my career and withheld all my FnF settlement including PF. My new employer HR is insisting on relieving letter from my previous employer which I am unable to produce. Please help and suggest.
From India, Kolkata
From India, Kolkata
HR can not hold the relieving letter or hold the gratuity / pf, leave aside ruining your career. You career depends upon your capabilities and not on the wish of the HR.
Write one email / letter to your company asking for the required documents
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From India, Mumbai
86Write one email / letter to your company asking for the required documents
Read latest posts on my blog
How to deal with stress at work ~ Health Beauty Fitness
From India, Mumbai
If the HR has given you an official, written communication mentioning your last date of work, it implies your last date is "mutually accepted". in this case, there is nothing that can stop you from getting a relieving letter, as well as an experience letter.
Go for it, you will get it. they can't stop you.
From India, Mumbai
Go for it, you will get it. they can't stop you.
From India, Mumbai
Dear Babudawn,
Let me address the issues you have raised in two separate parts viz.,
(i) Exit from the current organisation and receiving relieving letter and F&F dues and
(ii) Applicability of non compete agreement that has been signed by you.
First:
In terms of your letter of appointment, you are required to serve a one month notice period OR (presumably) pay a months’ salary in lieu of serving the notice period (this amount is usually the gross salary for the notice period not served). If you have served the notice period or are willing to pay the required amount, then your exit is a regular exit. The relieving letter, F&F and other dues cannot be withheld except in cases where assets of the company given to you, have not been returned back to the company.
Regarding writing a letter to your organisation for your relieving letter, I would suggest that you send a letter BEFORE 16th May i.e., the end of your notice period, stating that since your notice period, as stipulated in the employment letter, would end on 16th May, 2014, by when could you expect your relieving letter and F&F settlement to be completed. This should just be a letter making an enquiry and seeking clarification – nothing else. This letter can be referred to later on (after 16th May, 2014) when you send a reminder and undertake a follow up.
Second (a little lengthy response):
Non Compete clauses in employment contracts are fairly common these days. They are intended to restrict employees from joining competition and hence giving the competing organisation an unfair advantage because of confidential information or proprietary business know-how that may be carried by the employee and disclosed to the new employer.
This aspect is governed by Section 27 of the Contract Act which expressly states that "every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind is to that extent void".
For a non-compete clause to be held to be enforceable, two conditions must be satisfied viz.,
1. It should be proven that the employee concerned was in possession of sensitive, confidential or proprietary information, disclosure of which would be detrimental to the previous employer and
2. It should not infringe upon an individual’s fundamental right to earn a livelihood
Various courts in India have passed judgements along these lines, viz.,
A. In the case of Desiccant Rotors International Pvt Ltd v Bappaditya Sarkar & Ans (I. A. No. 5455/2008, I. A. No. 5454/2008 & I. A. No. 5453/2008 in CS(OS) No. 337/2008), the Delhi High Court ruled that in the clash between the attempt of employers to protect themselves from competition and the right of employees to seek employment wherever they choose, the right of livelihood of employees must prevail.
B. In the case of Percept D’Mark (India) Pvt. Ltd v. Zaheer Khan (AIR 2006 SC 3426), the Supreme Court of India summarised the principles of Section 27 of the Contract Act and observed that under Section 27 of the Act a restrictive covenant extending beyond the term of the contract is void and not enforceable.
The summary of this long explanation is that while the inclusion of a non-compete clause in your employment contract can be used to harass you, it is not legally enforceable in India.
Regards
Raju Bhatnagar
From India, Bangalore
Let me address the issues you have raised in two separate parts viz.,
(i) Exit from the current organisation and receiving relieving letter and F&F dues and
(ii) Applicability of non compete agreement that has been signed by you.
First:
In terms of your letter of appointment, you are required to serve a one month notice period OR (presumably) pay a months’ salary in lieu of serving the notice period (this amount is usually the gross salary for the notice period not served). If you have served the notice period or are willing to pay the required amount, then your exit is a regular exit. The relieving letter, F&F and other dues cannot be withheld except in cases where assets of the company given to you, have not been returned back to the company.
Regarding writing a letter to your organisation for your relieving letter, I would suggest that you send a letter BEFORE 16th May i.e., the end of your notice period, stating that since your notice period, as stipulated in the employment letter, would end on 16th May, 2014, by when could you expect your relieving letter and F&F settlement to be completed. This should just be a letter making an enquiry and seeking clarification – nothing else. This letter can be referred to later on (after 16th May, 2014) when you send a reminder and undertake a follow up.
Second (a little lengthy response):
Non Compete clauses in employment contracts are fairly common these days. They are intended to restrict employees from joining competition and hence giving the competing organisation an unfair advantage because of confidential information or proprietary business know-how that may be carried by the employee and disclosed to the new employer.
This aspect is governed by Section 27 of the Contract Act which expressly states that "every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind is to that extent void".
For a non-compete clause to be held to be enforceable, two conditions must be satisfied viz.,
1. It should be proven that the employee concerned was in possession of sensitive, confidential or proprietary information, disclosure of which would be detrimental to the previous employer and
2. It should not infringe upon an individual’s fundamental right to earn a livelihood
Various courts in India have passed judgements along these lines, viz.,
A. In the case of Desiccant Rotors International Pvt Ltd v Bappaditya Sarkar & Ans (I. A. No. 5455/2008, I. A. No. 5454/2008 & I. A. No. 5453/2008 in CS(OS) No. 337/2008), the Delhi High Court ruled that in the clash between the attempt of employers to protect themselves from competition and the right of employees to seek employment wherever they choose, the right of livelihood of employees must prevail.
B. In the case of Percept D’Mark (India) Pvt. Ltd v. Zaheer Khan (AIR 2006 SC 3426), the Supreme Court of India summarised the principles of Section 27 of the Contract Act and observed that under Section 27 of the Act a restrictive covenant extending beyond the term of the contract is void and not enforceable.
The summary of this long explanation is that while the inclusion of a non-compete clause in your employment contract can be used to harass you, it is not legally enforceable in India.
Regards
Raju Bhatnagar
From India, Bangalore
Dear Sir,
The GM-HR seems to be quite vindictive. He refused to provide relieving letter, experience certificate, FnF.
Should I write an email now (16th May, 2014 is the last date of my notice period of 1 month as per company policy).
******************************************
Subject : Request for guidance in obtaining FnF settlement
Respected Sir,
Based on my email of resignation, dated 16th April, 2014, I have already handed over company assets to my immediate supervisor on 17th April, 2014 which are verified by my supervisor on the same day (i.e., 17th April, 2014).
Since my notice period of one month ends on 16th May,2014 , I would request your kind guidance and clarification in obtaining the following
1) pending salary for the month of April,2014 and till 16th May,2014.
2) Provident fund clearance
3) Superannuation clearance
4) Residual leave encashment
5) Expense settlement which is incurred for the company for the month of April, 2014.
6) Advance settlement,
7) Relieving Letter
8) Experience certificate.
Seeking for your kind guidance as the above is important for sustainability of my livelihood.
Thanks and regards,
Babudawn
******************************
Do I need to make any changes in the above content, please suggest and guide.
From India, Kolkata
The GM-HR seems to be quite vindictive. He refused to provide relieving letter, experience certificate, FnF.
Should I write an email now (16th May, 2014 is the last date of my notice period of 1 month as per company policy).
******************************************
Subject : Request for guidance in obtaining FnF settlement
Respected Sir,
Based on my email of resignation, dated 16th April, 2014, I have already handed over company assets to my immediate supervisor on 17th April, 2014 which are verified by my supervisor on the same day (i.e., 17th April, 2014).
Since my notice period of one month ends on 16th May,2014 , I would request your kind guidance and clarification in obtaining the following
1) pending salary for the month of April,2014 and till 16th May,2014.
2) Provident fund clearance
3) Superannuation clearance
4) Residual leave encashment
5) Expense settlement which is incurred for the company for the month of April, 2014.
6) Advance settlement,
7) Relieving Letter
8) Experience certificate.
Seeking for your kind guidance as the above is important for sustainability of my livelihood.
Thanks and regards,
Babudawn
******************************
Do I need to make any changes in the above content, please suggest and guide.
From India, Kolkata
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