Employment Agreement/ Experience and Reliving Letter
1 month ago
I have joined a company with 3 years of agreement by depositing a 1 Lakh in the form of Bank Guarantee for the company. Deposit has made before joining the company as they will give appointment letter after deposit only. After joining I have signed an agreement continued my work in the company. After serving about 1.4 years I was supposed to left the company due some medical emergency and I didn't serve any notice period. They have claimed the amount which I have deposited in the name of company. I don't have any idea about Relieving end Experience letter at that time and I didn't even thought of it due medical emergency. Now When I asked them regarding experience letter and relieving letter, they are denying it to give. Instead they are saying that they will give only service letter mentioning as abscond. I even tried to negotiate to pay out notice period as mentioned in Appointment letter. But they denied saying it's not possible as your file is closed now. To proceed legally, I don't have a copy of service agreement. They didn't gave a copy of signed agreement. They kept with them only. Can you please suggest any solution to get my Experience and Reliving letter.
In the absence of essential documents, like a Service Agreement/Service Bond, it may be a very difficult task to defend your case. However, other than the service agreement, salary slips, EPF Contribution passbook, ESIC I/card, etc if available with you, may meet the purpose to a certain extent. A service/contract bond itself does not create any relationship between an employer and an employee unless and until it is followed by the essential steps required to make the Bond valid and enforceable under the law. The validity of Employment bonds can be challenged based on Section 27 of the Indian Contract Act,1872 which prohibits any agreement in restraint of trade and profession. The law states that an agreement (employment bond) will be illegal only if it restrains someone from exercising a lawful profession/ trade/ business. As per the mandate of Section 27, any terms and conditions of an agreement that directly or indirectly compels the employee to serve the employer or puts a restriction on them joining the competitor or other employer is not valid. The employee has the right to resign even if he has agreed to the employment bond to serve the employer for a specific period. In the case where the employer is able to prove that the employee is joining the competitor to disclose the trade secret then the court may issue an injunction order restricting the employee from joining the competitor. Further, Section 73 of the Contract Act makes provision for unliquidated damages (not stipulated in a contract) and Section 74 of the Contract Act deals with liquidated damages (stipulated in a contract) and no compensation is attracted for mere breach of contract u/s.73. 74 of the Act unless such breach resulted in an actual loss or damage to the opposite party. On cessation of employment, an employee is entitled to an experience certificate, relieving letter and F & F settlement dues from the employer denial of which amounted to unfair labour practices. So, in the prevailing situation, if you are not holding a position of manager or supervisor in the Company, but a workman as defined under Sec.2(s) of the Industrial Dispute Act, 1947. serving a legal notice to the Company reach out to the office of the concerned Labour Commissioner to file a complaint against the company over alleged unfair labour practice for redressal of your grievance, But, if you are holding the position of Manager or Administrator in the Company, you have to file a civil suit before the Civil Court for desired relief in the matter.
A.Dear Sir
Please approach the following authority or similar authority in a state
The Office Commissioner of Labour
Section 12 in The Industrial Disputes Act, 1947
12. Duties of conciliation officers.- (relevant section 12(2) of ID Act)
(1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under section 22 has been given, shall hold conciliation proceedings in the prescribed manner.
(2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.
(3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliationofficer shall send a report thereof to the appropriate Government 1 or an officer authorised in this behalf by the appropriate Government] together with a memorandum of the settlement signed by the parties to the dispute.
(4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.
(5) If, on a consideration of the report referred to in sub- section (4), the appropriate Government is satisfied that there is a case for reference to a Board, 2 Labour Court, Tribunal or National Tribunal,] it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor.
(6) A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government: 3 Provided that, 4 subject to the approval of the conciliation officer,] the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute.]
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