Indian Law/Company not Reliving me even after the notice period served and no Full and Final Settlement being done yet
QUESTION: Hi Rajeev,
Hope you are well.
I have been working for a company for 5 years plus and have resigned for better opportunities. During my notice period of 1 month I have been tried to retain but the offers which were given to me were something that didn't suit me so I declined them. The last day of my notice period I was informed that my resignation has not been accepted. Also I was forced many times to sign a Garden Leave contract which was brought to me during my notice period which I declined and after that the HR Manager and other management people forced Garden Leave on me and has asked me to stay away from work and not to join any competitor. I have worked for 5 years in a Recruitment Firm and that is what I know now which is my bread and butter.
Please advise as what is the best solution as I just want my dues to be cleared and relieved from the Company. I have been caused a lot of torture which even I after informing my Line Manager and Operations Manager, no one has been helping me out for the same.
Waiting to for your reply.
Thanks for your referral.
If you have served the notice period then you are in a position to leave with relieving letter in hand. Your current employer does not appear right to bring you under Garden Leave Policy after your having resigned.
In the given circumstances, you should proceed as follows:
(a) Confide with your next employer about the situation and request to let you join without relieving letter.
(b) If your next employer agrees to the above, you may send a registered letter to your current employer stating your having resigned, served the notice period and being entitled to be free and relieved at the end of the notice period and hence to relieve you and issue you a relieving certificate accordingly and further, having served the notice period you will not be attending office.
(c) If your next employer does not agree to the above, then you have to send the letter as above but continue attending the current employer's office and keep pursuing for relieving and getting relieving certificate and obtain it and then join with the next employer.
The above should help you.
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QUESTION: Hi Rajeev,
Thank you for the feedback. I have explained the whole situation to the next employer and they are ok to employ me however there are dues which my previous employer are not paying. I have already sent out a letter and an e-mail both to my previous employer stating that being served their notice period I am liable to be relieved which they are not allowing me to do so and asking me to give them in written a letter saying that I won't join a competitor and that is the only way they can relieve me and apart from that there is no option which I have and this is something I obviously can't as I have been in this profession for quite sometime now and can't leave this profession and join some other profession where I have to start from scratch.
Please advise me how can I get my dues i.e. Gratuity, P.F. & 1 month incentive.
My previous employer says that I am on the management discretion and even though I am not on a managerial post I can't be relieved. I have approached the Indian Labor Court and submitted my application however nothing has been done yet and I feel that like other cases even my case goes for long time then it would be a problem where I have to wait for the money which was deducted from my salary.
Such absolute non compete clause (i.e. you wont join the competition at all) is illegal and has no standing in law. You should point it out to your current employer. Perhaps after pointing it, your current employer will do the needful.
If that doesn't happen then suggest you should inform the entire thing in writing to the new employer, get the new employer's written consent to it and join with the new employer. Thereafter you will have to claim your PF, Gratuity and incentive from the old employer. You may have to fight for it. Am sure, if you fight, you will succeed. Suggest to do this in consultation with a reputed labour/ employment lawyer.