First of all you may check the Hotel is registered as industry or under SE Act.
Or the Kitchen is registered as Industry and other Dept under SE Act including yours.
The registration certificate is to be displayed near entry/notice board.
Has your company framed it standing orders. If yes these should be displayed on notice board and supplied to employee against a nominal charge of say Rs.10/.
If standing are not certified model standing orders shall apply.
SE Act Delhi:
30. Notice of Dismissal.
COMMENTS
(a) Applicability of section 30:
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……….
One of the duties of Inspector under SE Act is to ensure payment of wages to employee (SE Act does not indiscriminate between workman and non workman and is applicable to all employees) even in case of separation…..so you can find relief….
37. (b) Duties of the Inspector: (i)
-- The cap on wages under Payment of Wages Act has been increased to Rs.18000/pm, so it shall cover more employees now.
Look into:
3*[(vi) "wages" means all…..
(d) any sum which by reason of the termination of employment of the person employed is payable under any law…….
13A. Maintenance of registers and records.
5*[13A. Maintenance of registers and records.-
If payment of wages Act is applicable to the establishment, standing orders may also be applicable.
If Hotel has obtained permission to record attendance by IT mode then Punch in Punch out card is the record and Inspectors under Factory Act, SE Act may access it.
Your lawyer may ask you a set of structured questions and may opine that you fall within category of workman.
The file 142183437_resignation details..doc attached by you could not be downloaded and seen.
You have posted that:
--“although my IT manager had earlier assured me his full cooperation. It was only upon his assurance that I had deposited the fees and taken admission in part time course.”
You should have applied for and obtained approval in writing.
--“hence I tendered my resignation on 19.02.2013.”
“I attended office on 20.02.2013 (1st day of notice period of 30 days).”
Did you tender notice of resignation or immediate resignation?
Apparently you have tendered notice of resignation.
--“He then asked me to come next day and take reliving letter.”
You could have submitted minutes of discussion that you were informed by Mr/Ms……designation…..dept……of company…..address on dated…..time…..by phone call from phone number…..at your phone number……that resignation is being accepted by immediate effect and ordered to obtain NOC/NDC from all dept and thus complete the exit formalities.
While you reported for duty next day i.e. dated…….once again Mr/Ms……designation…..dept……asked you in office to contact Mr/Ms……designation…..dept……and this Mr/Ms……designation…..dept……handed over the blank NOC/NDC forms to you to carry to following persons and dept…..and collect duly filled and completed NOC/NDC from various dept foe submission to Mr/Ms……..for FNf settlement and that you do not need to complete the notice period and attend office any more.
Do you mean that your resignation was accepted before the expiry of notice period given by you?
If yes company should have offered to tender/tendered notice pay and had you accepted it there was no dispute.
If resignation is accepted before expiry of notice period, then you can agitate.
Supreme Court of India
Nand Keshwar Prasad vs Indian Farmers Fertilizers ..
“11. After giving our careful consideration to the facts and circumstances of the case, it appears to us that the law is well settled by this Court in a number of decisions that unless controlled by condition of service or the statutory provisions, the retirement mentioned in the letter of resignation must take effect from the date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date when the employee concerned did not intend to retire from such earlier date. It has also been held by this Court that it is open to the employee concerned to withdraw letter of resignation before the same becomes effective.”
You may demand original copy of FNF statement and offer to serve the notice period.
--“I went to my office and was handed documents for obtaining clearance from various departments. Accordingly I obtained clearance from all depts. and submitted the clearance with ‘people service’ dept.”
Have you retained the copies?
You could have submitted minutes of discussion that as per orders of Mr/Ms……designation…..dept……of company…..address that resignation is being accepted by immediate effect and ordered to obtain NOC from all dept and thus complete the exit formalities, you obtained NOC/NDC…...from dept……..issued by Mr/Ms……..designation……and……and……….and submitted by hand in office to Mr/Ms……….designation………dept………..name of company ….address…….on dated……time…….the NOC/NDC issued by dept……but the Mr/Ms…..declined to provide you any acknowledgment/receipt ………and same should be supplied to you by redg. post….
If FNF statement has been supplied to you, and no recovery of any company property is demanded from you this should imply that NOC/NDC was issued.
---“ They have adjusted my 19 days pay and unavailed leaves etc. on account of not serving notice period.’
This is the age old trick applied on you. Company wants to claim that although you submitted notice of resignation but by your free will decided not to serve the notice period.
However if company has issued you acceptance of notice of resignation/and resignation the language of it should be carefully studied.
--“ S. Management used to make us work for atleast 12 hours nearly every day & sometime upto 30 hrs continuously without any O.T. or compensatory off/rest period. Had once met a minor road accident while on duty but the absent/leave period was not considered ‘as on duty’ and was assigned 12 days continuous duty.
These facts can be proved by obtaining ‘punch in’ and ‘punch out’ timing of the attendance machine.
Do you have the copy of rejection of claim in your hands?
Give it to your lawyer, and understand the merits. The claim was submitted as per some group insurance policy, ESIC or what???
----The company would claim that employee used to remain in office without any need or instructions to work overtime.
No orders for OT were issued. Hence no claim is admissible. However let your lawyer examine the merits.
The Inspector under SE Act, Factory Act can check the registers and records and call the records in office. Yu may succeed to obtain record form Inspector under RTI.
If Hotel is private sector without any aid from govt. RTI act may not be applicable to it.
OT wages @ as applicable for off days/holidays should be paid.
You may not give acceptance to FNF statement and may reject to accept it in writing under acknowledgment citing errors within one month of its receipt.
SE Act Delhi: ( Attached. Study it carefully)
8. Employment of adults, hours of work.—
COMMENTS
(a) Mode for calculation of overtime wages
Claim for overtime should be made within reasonable time.
It is, however clarified that the Delhi Shops & Establishments Act, 1954 is not exhaustive on all the rights and obligations of the employers and the employees as such the provisions of Industrial Disputes Act, 1947 being Central Act governs the matters.
You may show all records to your lawyer, give inputs in person, spend quality time with your lawyer and get the merits examined. Once you are satisfied you may proceed under expert advice of your lawyer.
The company may yield to your representations, legal notice from your lawyer, notice from Wages Inspector, Inspector under SE Act, ALC in O/o Labor Commissioner or you may have to agitate in appropriate forum/court of law.
https://www.delhi.gov.in/wps/wcm/connect/doit_labour/Labour/Home/Acts+Implemented/Details+of+the+Acts+Implemented/The+Industrial+Employment++Act,+1946/The+Industrial+Employment+%28Standing+Orders%29+Central+Rules,+1946
