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tushar   29 July 2015

Company asking for 3 months gross salary

Hi

I am working in IT firm and I Need One Legal Advice On The Conditional Statement Written In My Offer Letter. 

Statement Is : In Case Of Relocation Case (Prospective Employee Joining From Other Location Apart From Pune), Employee Will Be Required To Serve Minimum Of 24 Months In The Organization From DOJ, Failing To Imply May Result In Gross CTC Recovery Equivalent To 3 Months Despite Of Serving Notice Period.

Now I Am Leaving Company Due To XYZ Reason In 4 Months And Company Is Forcing Me To Pay 3 Months Gross Salary Otherwise They Will Take Legal Action On Me And Will Not Give Relieving Letter That Was Accepted By Me At When Joined A Company.


Please Advice As Per Indian Labour Law Of Sowtware Companies - Does My Company Can Take Legal Action On Me If I Will Not Pay The Conditional Amount(3 Months Gross Salary)? Or Also Let Me Know If Any Alternative And I Can Avoid To Pay 3 Months Gross Salary. 


Thanks,
Tushar.



Learning

 8 Replies

Kumar Doab (FIN)     29 July 2015

 

What are these XYZ Reason? These may be sufficient to counter the claim and claim damages from company and somehow arrive at some settlement!

 

Did the company mention this clause in its job advertisement?

 

Did the company mention this clause during interview? If NO then you must have shared with your family, friends, colleagues, employee’s unions/trade union’s leaders etc and they can vouch for it!

 

 

How did you come across the vacancy? Were you approached by any employee/recruiter of the company? Did this person refer you? Did this person also have some cash/kind payment from your recruitment?

 

Did you mention your address/location in Resume and employment application and do you have the copies?

 

Did the company mention your full address/location when it sent the interview call?

 

Did it issue any selection letter/offer letter to you mentioning your address/location?

Did it ask you to resign from current employment and submit copy of resignation on the day of joining?

Was this appointment letter and arbitrary condition place before you when you had left the existing employment and you had no option but to sign the appointment letter, drafted by employer? Did you resist in person/in office/in writing/on record?

 

Is it mentioned that if employer initiates termination before 24 months it shall also tender payment=CTC of 3 months to go back to your location/next location or pay you any other kind of compensation to cover the loss you will suffer due to termination before 24 months? The contract of employment should be equitable or it can easily be termed arbitrary.

 

What was your designation and nature of duties?

 

How many people were reporting to you?

Were you to have any power to sanction (not just recommend) leave/increment/appoint/terminate?

 

Do you have leave policy, HR policy, Service Rules and Regulations, Conduct and Discipline Rules, Exit Policy that are mentioned in the appointment letter?

 

What was your monthly salary?

 

Did the company ask you to sign PF,ESIC,Gratuity Forms etc?

Was any, salary slip of 1st month and all months, PF number, ESIC card, I.Card, given to you?

Did you resign in writing under proper acknowledgment (followed by letter under acknowledgment or by Redg. Post) , and mention NO tasks are pending at your end and to whom you should handover the charge?

Did you submit notice of resignation or resignation with immediate effect?

 

Has acknowledgment of notice of resignation, supplied to you?

What is the maximum nimber of employees working in this company?

 

Were you asked to register with NSR/NASSCHOM and have you shared the PIN with employer?

Does the next employer agree to absorb you without insisting for relieving letter, service certificate? Or does it agree to buy out this condition of CTC of 3 months, without any condition?

Are you a member of any employee’s/Trade Unions?

 

 

 

 

 

 

 

 

tushar   29 July 2015

What are these XYZ Reason? These may be sufficient to counter the claim and claim damages from company and somehow arrive at some settlement!
Ans: XYS reason is I got a good opportunity in one of the best IT firm.
 

Did the company mention this clause in its job advertisement?
Ans: There is no clause mentioned in its job advertisement.

Did the company mention this clause during interview? If NO then you must have shared with your family, friends, colleagues, employee’s unions/trade union’s leaders etc and they can vouch for it!
Ans: Asd I have rejoin this organizaation but this clause was not mentioned during an inteview. 
 
How did you come across the vacancy? Were you approached by any employee/recruiter of the company? Did this person refer you? Did this person also have some cash/kind payment from your recruitment?
Ans: I came to know from third party recruiter email but company name was not mentioned in that email. I have replied of that email with my CV and got call baxk from HR.  
 
Did you mention your address/location in Resume and employment application and do you have the copies?
Ans: Yes I have mentioned my address in Resume and in employment application.
 
Did the company mention your full address/location when it sent the interview call?
Ans: Interivew was telephonic and no interview call had sent to me. 
 
Did it issue any selection letter/offer letter to you mentioning your address/location?
Ans: No offer letter sent to my address. Actual offer leter with this clause was given me after a week of joining.

Did it ask you to resign from current employment and submit copy of resignation on the day of joining?
Ans: Yes they asked to resign and I have sent acknolowdgement before a month from the day of joining.

Was this appointment letter and arbitrary condition place before you when you had left the existing employment and you had no option but to sign the appointment letter, drafted by employer? Did you resist in person/in office/in writing/on record?
Ans: Yes in appointment letter given to me before joining don't have this clause but offer letter given to me after joining an organization and in which this cluase is mention so I don't have any choice at that time. Unfortunately there is no resistaion because I haven't read that clause.
 
Is it mentioned that if employer initiates termination before 24 months it shall also tender payment=CTC of 3 months to go back to your location/next location or pay you any other kind of compensation to cover the loss you will suffer due to termination before 24 months? The contract of employment should be equitable or it can easily be termed arbitrary.
Ans: No there no clause mention that if employer initiates termination before 24 months it shall also tender payment=CTC of 3 months.   
 
What was your designation and nature of duties?
Ans: My desgination is Development Lead. Since I was joined there is no billable project work with company. I was handelikng a samall team with two team member who was reporting me on some non billable project work. Officially no one is reporting me till now.
 
How many people were reporting to you? 
Ans: Officiall no one is reporting to me since joing the company.

Were you to have any power to sanction (not just recommend) leave/increment/appoint/terminate?
Ans: No i don't have any power for the same.
 
Do you have leave policy, HR policy, Service Rules and Regulations, Conduct and Discipline Rules, Exit Policy that are mentioned in the appointment letter?
Ans: In appointment letter they didn't mention any thing. In offer letter they have mention abount some sepration policy in which this clause is written which was given to me after joining. Also they are claiming relocation expense and it was not mention neither in offer letter not in appointment letter. But they have mention in some where in company portal which was never communicated to me. 
 
What was your monthly salary?
Ans: My monthly salart is : 1.25 lacks
 

Did the company ask you to sign PF,ESIC,Gratuity Forms etc?
Ans: No. But they are deducting PF from my salary.

Was any, salary slip of 1st month and all months, PF number, ESIC card, I.Card, given to you?
Ans: Yes


Did you resign in writing under proper acknowledgment (followed by letter under acknowledgment or by Redg. Post) , and mention NO tasks are pending at your end and to whom you should handover the charge?
Ans: Yes I have resing under proper acknowledgment and same way accepted. No pending liabilities on me.

Did you submit notice of resignation or resignation with immediate effect?
Ans: Yes
 
Has acknowledgment of notice of resignation, supplied to you?
Ans: Yes

What is the maximum nimber of employees working in this company?
Ans: approx 100
 
Were you asked to register with NSR/NASSCHOM and have you shared the PIN with employer?
Ans: No

Does the next employer agree to absorb you without insisting for relieving letter, service certificate? Or does it agree to buy out this condition of CTC of 3 months, without any condition?
Ans: No next employer do not agree on any above conditon.
 
Are you a member of any employee’s/Trade Unions?
Ans: No

 

Thanks,

Tushar.

Kumar Doab (FIN)     29 July 2015

Resignation is personal matter and any communication can be submitted from personal email id (preferably by letter thru Red post), and should ideally be addressed to appointing authority, MD, Chairman, Board etc.

 

Usually offer letter is issued first and post acceptance of offer letter appointment letter is issued on the date/day of joining.

 

What was issued first to you: Offer Letter or appointment letter? Was it mentioned in first letter (Offer Letter or appointment letter) that service conditions shall be governed by say………………….HR policy/Service Rules etc that are available on employee portal/company portal and your log in id and password to access the portal is………………..?

 

You have already posted that “In appointment letter they didn't mention any thing. In offer letter they have mention abount some sepration policy in which this clause is written which was given to me after joining.”…………………….however you may reconfirm the reply.

You have posted that:

-- “Yes they asked to resign and I have sent acknolowdgement before a month from the day of joining.”…………………………..Is this communication inwriting? You must add in your representation that on dated…………………..Mr/Ms……………asked you to resign from M/s………….. before joining Ms………………and acknowledgment of resignation was demanded from you and you did that and supplied the acknowledgment.

--“ offer letter given to me after joining an organization and in which this cluase is mention so I don't have any choice at that time.” You must highlight it.

 

--“ Officiall no one is reporting to me since joing the company.’ Mention it but  in low tone.

 

--“ Are you a member of any employee’s/Trade Unions?
Ans: No’

It is to your disadvantage and your loss.

 

--“ No next employer do not agree on any above conditon.

You have not negotiated properly. You are at disadvantage now.

 

There is no need to mention that you had applied thru consultant, at the moment.

 

You may submit a gentle representation narrating that on dated……………..you got a call from (mention names/phone numbers/dates…………) and no condition…………… was mentioned…………………by recruiter/HR/during interview dated…………………at………………by ……………then ………………and cover everything……………….and conclude that any condition that was not communicated/negotiated in interview and first letter (offer/appointment) should not have been included in T&C inserted in 2nd letter that was supplied to you ………….days after joining and …………….days after having resigned from employment in hand i.e M/s…………and it was made understood that if you are asking to relocate you will be paid all expenses without any precondition…………….

 

 

If at all you decide to pay, it should be under clear protest……………………..and clearly visible that you were threatened that Relieving letter was not be issued and thus you would be rendered unemployable……………….so that you can agitate later.

 

You may ask them to include/adjust………… the penalty e.g. relocation expenses/notice pay (mention as per  correct notice period applicable to you) etc along with earned wages,Bonus,leave encashment etc in FnF statement and supply the service certificate, relieving letter, Form16 as per correct FnF statement, NOC/NDC,Handover of charge,salary slip of all months,PF number with a/c slip etc on LWD.

 

Get good comments in Reliving letter on conduct and performance and avoid without comments and with adverse comments.

 

Don’t accept the FnF statement or record that it is (erratic) not in line with letter/email dated……………….addressed to appointing authority/MD etc....................

 

And/or build irrefutable written record that places on record that you were forced/coerced/intimidated/pressurized for……………..including acceptance of FnF statement……………

 

IT companies are covered by (Name of the State) Shops and Commercial Establishments Act that was enacted to govern the service conditions of employees working in establishment covered by the Act.

 

The nature of employment as posted by you, you might be covered by the def. of ‘Employee’ as in Bombay Shops and Commercial Establishments Act, and also ‘Workman’ as in ID Act……………..and even if you are not covered you seem to have a good case in other fora.

 

You may go thru:

Bombay Shops and Commercial Establishments Act;Sec: 2(30),38-B,66

Notice period for 4 months of service is 14 days.

The standing orders are applicable if no. of employees is 50 or more until or unless state govt. has not exempted your trade/industry/establishment………………….and if standing orders are not certified Model Standing orders shall apply.

Model Standing orders; sec13-18;Notice Period during probation period is NIL and after confirmation 30days……………….and service certificate should be supplied on LWD.

If standing orders are certified then you may check if your designation is covered.

These enactments being Act of Law/statue/instrument of law shall prevail upon any private agreement that employer has drafted and signed with employee.

In Maharashtra employee’s/trade Unions have traditionally been strong and as MRTU,PULP the practice may be termed unfair. In Maharashtra the Labor Dept also offer PAMS…………………..

 

It shall be better if  all of your representations are drafted by your able Labor Law Consultant/service matters lawyer/law firm.

 

 

tushar   30 July 2015

Hi Kumar,

Many thanks for your reply.

In this organization they have issued "Appointment Letter" first in which no condtion was mentioned and only salary structure and joining date was mentioned. On the basis of that they asked me to put resign  and then issued offer later after joining.

Issue concern to me is the constion written in an "offer letter" that is issued to me after joining. 

Thank you for advise and  I am kindly requesting them via writing an email as suggested by you above.

Thanks,

Tushar.

 

tushar   30 July 2015

Hi Kumar,

I have dropped following email to HR & Finanace:

Hi <HR>,

 

Before joining an organization “Offer Letter” issued to me(find in an attachment) on  6th Feb 2015 and accepted by me on 09th Feb 2015 in which no “separation clause”  is mentioned. That’s conclude that any condition that was not communicated/negotiated to  me in “Offer Letter”. Letter the “Separation clause” mentioned in an "Appointment Leter" handover to me after two weeks(30th Apr 2015) from date of joining(13th Apr 2015) . In this case there is no choice left to me as I already resigned and left my previous organization.

According to me such type of precondition should always be pre communicated and accepted via email/hard copy from both the parties  before joining. Any post condition without providing an additional benefits like onsite, monitory benefits etc. is not legal.

So kindly request you that legal issue is exist at both the side and negotiate below amount on the basis of that.

Thanks,

Tushar Parikh.

 

And got the following rely

 

Offer letter is not a tenable document as per labour laws. Your appointment letter clearly speaks about relocation clause which is the binding document.  Please don’t advocate your case based on legal conditions attached to this case.

 

We have already worked out the best possible solution so let’s close this case by paying that amount. In case you don’t agree we will be force to initiate legal action to recover the said amount apart from filing an FIR as per Section 9 of Payment of Wages act , 1936.

I’m sure you would like to depart on pleasing note.

Regards,

<HR>

 

Please guide me for an appropriate replay.

Kumar Doab (FIN)     30 July 2015

 

It was suggested that you should consult an able Labor Law Consultant/service matters lawyer/law firm and it shall be better if  all of your representations are drafted by your able Labor Law Consultant/service matters lawyer/law firm.

 

Have you drafted your email yourself or your counsel has drafted it?

 

The draft of your 1st and 2nd post was concise.

The draft of your last and 2nd last post and email to company is poor.

 

You have once again confused yourself and readers in your posts (last and 2nd last post again) and clarify: What is issued to your first: offer letter or appointment letter?

In any case the offer letter or appointment letter that was issued later was not provided on day of joining.

You have posted that:

What was your monthly salary?
Ans: My monthly salart is : 1.25 lacks

If it is correct Payment of Wages Act is not applicable to you as your monthly wages are above Rs.16000/pm as per def. of wages in the Act...

 

https://hrylabour.gov.in/docs/labourActpdfdocs/Payment_of_Wages_Act.pdf

 

Moreover Sec;9 in Payment of Wages Act is

9. Deductions for absence from duty

Have you been absent from duty?

 

Has Payment of Wages Act been applicable then the company could have cited  

7. Deductions which may be made from wages. : {(2)(f)}

 And had it cited it needed to prove it also.

 

With the kind of salary you are drawing you should have preferred and would have been able to afford to consul an able lawyer.

Offer letter is a tenable document.

The HR person seems to be day dreaming him/herself as a lawyer and judge.

 

All said and done a threat has been made by HR and now you must endeavor to get relieving letter with good comments.

tushar   30 July 2015

Hi Kumar,

Thank you again for the reply.

I haven't consult any counseler yet so that email was posted by me only.

Sorry for confusion on "offer letter" and "appointment letter" so to clarify that: I don't have any issue with an "Offer Letter" but I have an issue with an "Appointment Letter" that was handover to me after 16 days from DOJ.

Let me know If you know any good Labour Law consultant in Pune so I can connect with him/her.

Thanks,

Tushar.
 

 

Kumar Doab (FIN)     30 July 2015

Employee should always keep elders of the family,competent and experienced well wishers by his side.

Employee should become member of employe's/trade union leaders and be properly informed.

Employee should retain access to an able Labor Law Consultant/service matters lawyer/law firm.

At Pune you should be able to access Labor Law Consultant/service matters lawyer/law firm, par excellence.

 

Your counsels may ask you to show all docs on record verbatim and may opine that you can approach:

Inspector appointed under Bombay Shops and Commercial Establishments Act

O/O Labor Commissioner

Higher Officials of Dept. of Labor

 

You may send your contact details by PM if you wish and if possible soem inputs shall be sent to you by PM.

 

 


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