On line discussions have its own limitations.
Approach your lawyer in person with all documents and record and spend quality time with your lawyer, before you act further. Let your lawyer’s opinion be final on all points discussed in this thread.
You can access lawyers par excellence in Delhi.
It is vaguely remembered another employee from a 5 Star Hotel had initiated very similar thread and filed a case.
You have posted that:
-----“The Indian laws are not enforceable on MNCs”.
The person who has made this comment is sick and wicked mind and has no respect for the law. He/she should be booked and he/she should affirm that law of the land is applicable to him/her, his employer/company.
The company which has registered in India has to abide by the laws of the land. The Hotel might have registered under factory Act and The IT Dept. of the Hotel must have been registered under Shops and Commercial Establishments Act of Delhi which is so employee friendly that it shall cover all points raised by you. This enactment is applicable to all employees as per def. of employee in this Act and does not indiscriminate between workman and non workman. You may go thru it carefully and relate.
The company owning might be under the purview of IESO Act and Hotel might have its certified standing orders and if standing orders are not certified Model Standing Orders shall apply.
The registration certificate is to be displayed near entrance/notice board.
2. Definitions: 6, 7, 8, 9, 13, 14, 16, 17, 21, 22, 23, 28, 30…..
COMMENTS : Sub-section 13—”Holiday” :……………………” The introduction of paid holidays
for workers, both in law, and in practice, is based on the one hand on the ‘employees’ right to leisure and to the opportunity of developing his personality and, on the other, on the necessity of preserving or restoring his health and strength in the interests of production and service to be rendered. Holidays with pay, if they are properly utilized, may provide a real and complete escape from the ideal means of relaxation and afford abundant opportunity of gaining material and social experience under different conditions…………. Employees return to their jobs with fresh enthusiasm and renewed reserves of strength after spending their holidays under suitably restful conditions……………………. The quicker industrial rhythm and the monotony of the work caused by modern mechanization render it essential to grant regular rest periods if workers are not to succumb to physical overstrain and to the weakening of their morale and if their health and working capacity are to be preserved.”
Sub-section (14)—“working hours”:
The phrase “working hours” or “hours of work” as defined in this sub-section means the time during which the persons employed are at the disposal of the employer exclusive of any interval for rest and meals………………….. excluding of course the time allowed for rest and meals.”
3. Rights and privileges under other law, etc., not affected:…………………….. if such rights or privileges are more favourable to him than those to which he would be entitled under this Act.”
5. Registration of Establishments.
8. Employment of adults, hours of work::………. No adult shall be employed or allowed to work about the business of an establishment for more than nine hours on any day or 48 hours in any week and the occupier shall fix the daily periods of work accordingly.
Provided further that advance intimation of at least three days in this respect has been given in the prescribed manner to the Chief Inspector and that any person employed on overtime shall be entitled to remuneration for such overtime work at twice the rate of his normal remuneration calculated by the hour.
Explanation.—For the purpose of calculating the normal hourly wage the day shall be reckoned as consisting of eight hours.
COMMENTS
(a) Mode for calculation of overtime wages
11. Spread over.—The periods of work on any day of an adult person shall be so arranged
that inclusive of his interval for rest or meals as required under section 10, they shall not spread over for more than ten and a half hours in any commercial establishment…..
16. Close day.—(1) Every shop and commercial establishment shall remain closed on a close day.
(2) In addition to the close day every shop and commercial establishment shall remain closed on three of the National holidays each year as the Government may by notification in the Official Gazette specify.
17. Period of rest (weekly holiday):
19. Time and conditions for payment of wages.:………. (5) Where the employment of any person is terminated by or on behalf of the employer, the wages earned by him shall be paid before the expiry of the second working day after the day on which his employment is terminated.
21. Claims relating to wages:…………2……….. Provided that every such application should be presented within one year from the date the claim for such wages has become payable under this Act:
(7) Every authority appointed under sub-section (1) shall have all powers of a civil court under the Code of Civil Procedure, 1908 (5 of 1908) ……………and Chapter
XXXV of the Code of Criminal Procedure, 1898 (5 of 1898).
COMMENTS
Jurisdiction of the Authority
If an employee works for extra hours voluntarily and without any direction by the
management, the claim for overtime will not be admissible;
22. Leave.
24. Contracting Out………
COMMENTS:
A workman will not be legally bound by the contents of the receipt for full and final settlement executed by him if he is waiving any legal dues;
30. Notice of Dismissal.—(1) No employer shall dispense with the services of an employee who has been in his continuous employment for not less than three months, without giving such person at least one month’s notice in writing or wages in lieu of such notice:
(3) In any case instituted for a contravention of the provision of sub-section (1), if a Magistrate is satisfied that an employee had been dismissed without any reasonable cause or discharged without proper notice or pay in lieu of notice…………..
COMMENTS
(a) Applicability of section 30
The protection of the provisions of the section is available to all persons who fall within the definition of the term “employee” as given in section 2(7) of the Act and who have put in three months’ continuous services. In the absence of any standing orders or any contract between the employer and the contesting respondent containing any particular terms or conditions, the conditions of service of the employee relating to his employment in an establishment at Delhi are covered by section 30(1) of Delhi Shops and Establishments Act, 1954;
(b) Notice or wages in lieu thereof under section 30—When to be given?
It may also be pointed out that if the employer has preferred to dismiss or discharge an Employee…………………………………. it
is incumbent upon him to hold an enquiry and then to find the employee guilty of any of the acts of misconduct…………..
(d) Section 30 of the Delhi Shops and Establishments Act, 1954 does not exclude the application of the Industrial Disputes Act, 1947
33. Records……………. (2) The occupier of any shop or establishment, about the business of which persons are employed, shall in the prescribed form and in the prescribed manner keep a record of the hours worked and the amount of leave taken by,
(4) The occupier of every shop or establishment shall for the purpose of this Act maintain such other records and registers and display such other notices as may be prescribed.
COMMENTS
(a) Particulars and forms of the records required to be maintained under section 33
Failure to maintain the records in the prescribed form and in the prescribed manner, i.e., not keeping exhibited a notice setting-forth the close day or a record of the hours worked and the amount of leave taken by end of the intervals allowed for rest and meals or not entering the particulars of all employment overtime, amounts to contravention of the provisions of section 33 of the Act and the proprietor, employer or the manager of such an establishment is liable to be punished……………
The register of employment and wages is required to be kept in Form ‘G’ duly bound and pages serially numbered. Where, however, the opening and closing hours are ordinarily uniform, the employer may maintain such register in Form ‘H’ alongwith a separate register of wages and record of leave in Form ‘I’ but the entries relating to a particular date on which an employee if called upon earlier or detained later than the usual working hours are required to be made immediately in the remarks column of Form ‘H’ before such early or late working commences…………..
(d) Can an Inspector require an employer to produce the record in his office for
inspection?
35. Inspection of Registers and calling for information.
37. Powers and duties of the Inspector
COMMENTS
(a) Powers of the Inspector
(b) Duties of the Inspector:………….. (i) that in dispensing with the services of an employee the provision of the Act and Rules have been complied with and no dues payable under the Act or Rules have been withheld;
41. Wilfully making false entries.
43. Determination of employer for the purpose of this Act
------“ obtained clearance from all the departments”
An employee who is under notice by resignation/termination can be asked to obtain clearance from all dept on any day during the period of notice.
Obtaining clearance does not imply that employee has preponed his date of resignation.
Or employer has got the right to discharge before the date of resignation/retirement given by employee. The Supreme Court of India Judgment has already been quoted in this thread.
Employee can withdraw notice of resignation any time before the expiry of notice period.
-------“ My IT manager handed me blank forms saying that they are relieving me with immediate effect’
This IT manager or HR are not authority until or unless they are empowered by Board of the company in writing to appoint or terminate or relive any employee.
------“ I informed the GM of the hotel on his official email ID and objected for being terminated”
If the service of any employee are terminated then order of termination should be supplied to employee.
It is almost sure that this GM has not neither acknowledged nor replied to your email.
So can’t you claim that you were prevented from attending office and perform your duty till your date of retirement?
If company has terminated verbal order of termination then as per bilateral agreement signed with you it has to tender notice pay.
------“ The demand letter has an annexure under title ‘FINAL CLEARANCE’ wherein Probable Exit Date “
What is this probable date of exit?
Whatever it is it is issued by the employer…………………..
