• Employer did not give experience certificate despite serving notice period of 1 month

I was working in private firm in Pune, Maharashtra. I have applied for resignation on 5th February 2019 and left company on 8th March, 2019. I joined the other company on 11th March, 2019. As per the previous company policy, i have to serve two months of notice period. But i request them to reduce my notice period. The company didn't agreed on them and didn't give me experience certificate.
I also asked them for buyout of notice period. But they doesn't accepted.
Asked 2 years ago in Labour

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24 Answers

You can send them legal notice and later file a complaint to labour commissioner office. If not resolved cdn approach court for the same

Prashant Nayak
Advocate, Mumbai
28106 Answers
93 Consultations

4.4 on 5.0

You could have offer buying notice period but prerogative of company to accept or not.

Well, experience certificate you can obtain by approching labour court. Have to pay for one month notice period.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

You failed to serve the notice period as per terms of your appointment letter 

 

2) since you filed to serve notice period you have not been issued relieving letter and experience certificate 

 

3) send cheque for one month notice period and request company to issue you experience certificate 

 

4’ ) if company refuses you would need court orders to direct company to issue you experience certificate 

Ajay Sethi
Advocate, Mumbai
89092 Answers
6362 Consultations

5.0 on 5.0

That's ok. You can do the aforesaid they will give you relieving letter/experience certificate

Prashant Nayak
Advocate, Mumbai
28106 Answers
93 Consultations

4.4 on 5.0

Dont expect parity that company accepted other employee resignation, will accept yours too. 

It's ok that no training given to you but you are bound to honor bond. So don't bother much. If you will process to obtain EC, have to pay  omd amount.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

You should serve them with a legal notice straight away. In any which way they cannot withheld your experience certificate.

Nirmit Srivastav
Advocate, Lucknow
60 Answers

5.0 on 5.0

Well if you left before the stipulated notice period then they are not obliged to give you an experience certificate.

Rahul Mishra
Advocate, Lucknow
13846 Answers
65 Consultations

5.0 on 5.0

Well as you have stated the notice period is of 2 months. But you may negotiate with them for waiving it off. 

Rahul Mishra
Advocate, Lucknow
13846 Answers
65 Consultations

5.0 on 5.0

You can issue a legal notice demanding the experience letter from the company based on yor resignation  letter.

You can inform the company that you are ready and willing to pay compensation toward the un served notice period.

If the company is still not responding properly or not issuing the experience certificate you may approach labor court for remedy.

 

T Kalaiselvan
Advocate, Vellore
79250 Answers
1618 Consultations

5.0 on 5.0

The email communication sent by you may not be very effective hence the company is playing this dilly dallying game against you.

Therefore you may make a representation in writing to the management explaining the circumstances under which you had to leave this company and may even inform that you are ready and willing to compensate the balance of notice period by paying  the money in lieu of the actual notice period.

You may send this communication by registered post.

After that you may resort to legal action by first issuing a legal notice to the company through a lawyer demanding the desired experience certificate.

Later on you can plan to approach labor court seeking the desired relief through them if there is no response for the actions taken by you so far..

 

 

T Kalaiselvan
Advocate, Vellore
79250 Answers
1618 Consultations

5.0 on 5.0

They have their excuse to be taken as you have not completed the bond period and the notice period required because by signing the bond you are liable for payment of rupees 100000 even if there was no training actually service terms and conditions must be followed by both the parties as in your case then what is requirement for 2 months cannot be compared with the others as the appointment conditions for each and every employee can be different in private organisation it is to a contract and as soon as you signed a contract all the terms and conditions are applicable to both the parties increase your interest is is affected because of the company policies you may take legal action but please be aware before that you have not completed the bond period and notice period both

Vimlesh Prasad Mishra
Advocate, Lucknow
6849 Answers
23 Consultations

4.9 on 5.0

You didn't serve the proper notice period.

So now, serve them with a legal notice to issue you the required certification. If they still don't do anything than file a specific performance suit against them 

Rahul Jatain
Advocate, Rohtak
5365 Answers
4 Consultations

4.8 on 5.0

From examining all the facts of your query I want to say that-
These cases are very common in various Courts of India and Supreme Court of India.
You know that Absconding, in a layman language means secretly running away from a situation to escape custody or arrest. As per the Indian Contracts Act, no contract can be enforced on any person if the contract which is being enforced causes any harm to the person on whom it is enforced and if performed, it would violate principles of the natural justice. Employment is also a sort of contract and should be treated in the same manner. Supreme Court of India has clearly stated that no employee can be forcefully employed against his will, just because he has signed a contract with the employer. The court also has stated that the employer can not hold back any personal document of the employee as they are earned by the employee and the company has no claim on the same. And if there is no bond, then the company cannot claim anything from any employee. I have dealt with such cases in Supreme Court.

Whether the relationship of employer and employee comes to an end by way of resignation or voluntary retirement in a given situation may not matter so as to enable the employer to deprive the employee from the benefit of a beneficient scheme. It may be one thing to say that a scheme for payment of pension having been introduced at a stage when the concerned employee has retired, would not be entitled to the benefit thereof but it is another thing to say that although he, at all relevant times, was in service, he would be deprived there from only because he has either resigned or retired voluntarily. Resignation and voluntary retirement stand on slightly different footing but the effect and substance thereof is not of much significance. It may be true that an offer of voluntary retirement may be accepted or may not be accepted but such is a case of resignation also particularly when the concerned employee is faced with departmental proceedings. The employer, having accepted the resignation, even upon waiver of the notice period, cannot be permitted to turn round and contend that he was not entitled to the pensionary benefits.

It is pertinent to mention here that your colleagues were relieved in one month and one week. The colleagues didn't complete one year in company. You wrote mail to HR. But HR didn't replied in written communication and gave verbal communication. Something is fishy. You can issue a legal notice to the private firm to comply with the norms. All legal action can only be taken once notice has been served upon the entity or individual you wish to take to court. It is only this process that legalises bringing a matter to court. The intimation sent is known as a legal notice. A legal notice is, therefore, a formal communication to a person or an entity, informing the other party of your intention to undertake legal proceedings against them. This notice, when sent, conveys your intention before the legal proceedings and thus, makes the party aware of your grievance. Many times, a legal notice served will bring the other party on heels, and the problem can get resolved out of court too, with fruitful discussions on both sides.And, if the other party is still not heeding to the grievance, one can always start the court proceedings after a particular interval, as stated by the law. Although a legal notice can serve as a purpose of negotiations between the parties and save time, effort and money that are usually spent in court cases. You can also contact the Labour Department in Pune, Maharashtra and raise a formal complaint.

You may contact my secretary to connect with me for clarification.
I hope you and your family are safe and healthy. Stay home and be safe during Covid-19.

 

Gopal Verma,
Advocate on Record & Amicus Curiae,
Supreme Court of India

Shri Gopal Verma
Advocate, New Delhi
317 Answers
5 Consultations

4.0 on 5.0

1. You were bound to serve the notice period if the company did not accede to your request to reduce the notice period or accept salary in lieu of it.

2. The previous company can deny you experience certificate as you violated your contractual obligations and can also sue you by filing a suit for recovery of damages in the civil court.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

You can send them in reply that company has not provided you proper training and in this regarding they can't charge the bond amount. Plus due to COVID19 you could not come out of the house. So on medical ground you can't continue the employment services of the company and need relieving letter and experience certificate. As you have given proper 1 month notice to them.

Ganesh Kadam
Advocate, Pune
12423 Answers
193 Consultations

4.9 on 5.0

1. See the offer letter/ your employment terms need to be seen and perused in this case as you need to serve notice period as per policy to get formal reliving and experience letter.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. You have not completed that notice period also the resignation is not accepted that is why company is accusing you of absconding. See after perusing your company terms you may engage an advocate to.seve notice to them asking reliving letter and experience letter along full and final settlement if any remaining.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. You have not completed that notice period also the resignation is not accepted that is why company is accusing you of absconding. See after perusing your company terms you may engage an advocate to.seve notice to them asking reliving letter and experience letter along full and final settlement if any remaining.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Please write a mail to HR regarding that your intention was to buy back the remaining notice period but company refused and under tremendous pressure from the new employer you were forced to leave the company, if don't reply then file an application under unfair labour practice before the labour department.

Koshal Kumar Vatsa
Advocate, Gurgaon
2283 Answers
3 Consultations

5.0 on 5.0

- As per Specific Relief Act, if any employee quits before the notice period, the Employer can only recover the Notice pay, and the Company cannot force to serve the entire notice period.

- Further, the resignation decision is the employee’s decision, and the employer cannot sue for breach of contract, if the employee leaves without serving contractual notice. 

- Except, recovery of the said amount, company cannot harm you for the same

- Further, no employer can refused to return the original certificates or to issue experience/relieving letter .If they are doing so, their act is illegal, unjustified and against the fundamental rights of the employee.

- Further, the employment bond with the negative covenant is valid and legally enforceable, if the parties agree with their free consent i.e. without force, coercion, undue influence, misrepresentation and mistake, but it is not enforceable, if it is either one sided, unconscionable or unreasonable.

- Further, section 27 of the Indian Contract Act prohibits any agreement in restraint of trade and profession.

- Since, you have already served one month notice period , hence the company cannot refuse to issue experience certificate legally, such type of acts are against the law. 

- Send a written notice or legal notice and thereby ask for the same , if refuse , then lodge a complaint before the court. 

- However, after receiving your legal notice , company will itself issue the same . 

Mohammed Shahzad
Advocate, Delhi
10324 Answers
124 Consultations

5.0 on 5.0

If they do not agree, send them a legal notice as they can not enforce the concept of Bonded labour.

The HR of your organisation is intentionally harassing you, so you need to fight back , legally. 

Mohammed Mujeeb
Advocate, Hyderabad
19032 Answers
32 Consultations

4.5 on 5.0

If they do not agree, send them a legal notice as they can not enforce the concept of Bonded labour.

The HR of your organisation is intentionally harassing you, so you need to fight back , legally.

Mohammed Mujeeb
Advocate, Hyderabad
19032 Answers
32 Consultations

4.5 on 5.0

Company claim that you have absconded is based on reasoning you did not work for organisation for 18 months as per terms of bond signed by you 

 

hence company is not issuing you experience certificate 

Ajay Sethi
Advocate, Mumbai
89092 Answers
6362 Consultations

5.0 on 5.0

You should send them a legal notice for relieving letter and experience certificate and if they refuse to give you the documents then file suit against them to claim your relieving letter and experience certificate.

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

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