Non Payment of Salary
Suresh Anand S
(Querist) 25 December 2018
This query is : Resolved
Dear sir,
I was working for Sri Sun Solar Energiser Pvt Ltd for almost 1 and half year as Sales Executive.Due to some personal reasons I had to resign from the company and in my last month I had worked for 30 days of November. And now i am asking them to issue my last month salary they are not issuing it giving reason that i didn't complete notice period. But the fact is I didn't have any notice period and they haven't mentioned in offer mail even about any kind of notice period. They just gave an offer mail, they didn't give any offer letter. And I informed 15 days before resigning.
Please help me with the same what should i do because i dont want to leave my salary.
Guest
(Expert) 25 December 2018
Consult an local Advocate and serve a legal notice first in detail to your ex employer regarding your claim please.
SHIRISH PAWAR, 7738990900
(Expert) 25 December 2018
You can approach labour court for recovery of your unpaid dues. Appoint local advocate.
Kumar Doab
(Expert) 25 December 2018
You have posted that;
“Dear sir, I was working for Sri Sun Solar Energiser Pvt Ltd for almost 1 and half year as Sales Executive.Due to some personal reasons I had to resign from the company and in my last month I had worked for 30 days of November. And now i am asking them to issue my last month salary they are not issuing it giving reason that i didn't complete notice period. But the fact is I didn't have any notice period and they haven't mentioned in offer mail even about any kind of notice period. They just gave an offer mail, they didn't give any offer letter. And I informed 15 days before resigning. Please help me with the same what should i do because i dont want to leave my salary.”
The argument is; Notice period shall apply or not, in your case?
If notice period is not applicable in your case, the establishment may not succeed to square off your dues by notice pay for notice period.
And you do not want to give up your salary (earned wgaes)/dues!
You do not have to give up until establishment establishes that you are not eligible as per applicable enactments that apply to establishment/employer/employee, service rules/conditions as per applicable enactments.
Asking, asked, said, told, telling are all verbal modes of communication, and difficult to establish.
Are all transactions posted by you, in writing?
Kumar Doab
(Expert) 25 December 2018
Understand the basics;
If employer ITself or thru attorney of employer in HR/personnel/IR/Accounts/Admin/legal cells, vested with authority to send offer letter by email did not insert notice period in said offer letter and did not provide any other agreement/appointment letter then notice period may not apply and as a result notice pay!
Employer can provide superior benefits to employee than as provided in applicable enactments but not inferior.
Does applicable enactments lay down that employer should provide appointment letter e.g; Shops & Estbs Act?
While posting such queries employee should post basic information!
What is this establishment; Govt, private, Commercial, Industrial?
What is its nature of business say; IT, ITeS?
How many persons are employed in it?
What is your designation and nature of duties?
How many persons report to you?
Do you have any power to sanction leave/increment/appoint/terminate/appraise etc etc ?
You are in which state? Since how many months you are working? Are you under probation period or your service is confirmed in writing?
Do standing orders (model/certified) apply to establishment and your designation? Has establishment mentioned anything about standing orders in any communication to you e.g; said offer by email or subsequently say by email etc?
What is notice period as per appointment letter/offer letter and what was notice period tendered by you?
The said offer letter narrates your relationship with establishment as employer-employee or does IT show the engagement as contract for service ..or contract of service?
Did you tender notice of resignation/final resignation in writing and mention notice period/LWD in IT? Do you have copy, POD?
Was your resignation accepted and FnF statement issued to you? Did you accept the FnF statement in writing?
Did you submit written representation under proper acknowledgment to good offices of appointing authority/MD/CEO, narrating all representations made by you and did company reply in writing?
Was ever any stinker, memo, show cause notice on any misconduct issued to you?
Does the establishment have its appraisal system? Do you have copy of signed appraisal forms, matrix, KRA’s, performance date? How was your performance?
Are you a member of employee’s/trade unions?
Has the establishment issued/supplied, offer letter, appointment letter, ID card, salary slips of all months, PF number and a/c slips of all years, ESIC card, correct FnF statement, Form 16 as per correct FnF statement (showing computation of earned wages/bonus/leave encashment/incentives/reimbursements etc etc and adjustment of notice pay and final payout by employer/employee), acknowledgment and acceptance of notice of resignation/final resignation, acknowledgment of handover of charge/assets, NOC/NDC……………etc etc , relieving letter?
You may revert to relevant points.
Name of company etc is not required so don’t post names etc .
Kumar Doab
(Expert) 25 December 2018
If you wish you may post the contents of said email offer verbatim. Erase all names etc to maintain confidentiality before you post.
Or show the same to your own very able LOCAL counsel.
Does the said ofer leter by email narrate that all T&C of appointment/appointment letter shall be issued on DOJ and your engagement ( as employee/contractual employee/contractor etc ) shall be governed by HR policy/service rules of establishment …………….and/or that T&C/Rules are available on webportal that can be accessed by employee thru employee log in etc ?
Generically speaking; Changes in service conditions should be effected after bilateral discussions/prior notice..and mutually agreed upon.
Notice period is part of service conditions that are governed by various enactments (applicable to establishment/employer/employee) and provisions of such enactments shall prevail upon any private agreement drafted by employer and signed with employee e.g; offer letter/appointment letter/HR policy/Service Rules/Contract of employment etc
GO thru; THE INDUSTRIAL DISPUTES ACT, 1947; 9A 21 days notice shold be given.
ID Act ( a Statute) otherwise does not lay down any notice period for employee and lay down notice period for employer in cases of retrenchment.. assess if you are covered by the def. of ‘Workman’ as in the Act.
Notice period is part of service conditions and governed by various enactments applicable to establishment/employer/employee.. e.g;
--Standing Orders; Model (a Statute), Certified ( Instrument of law)
GO thru Model Standing orders;13 ..if you are covered by def. of ‘Workman’ as in ID Act,
and respective clause of Certified Standing Orders if the standing orders of establishment (that has employed you) are certified and yor designation is covered.
Employer should display standing orders at a conspicuous place in establishment and also circulate to employee without any cost/reasonable cost say Rs10/-). The employee can also obtain certified copy of certified standing orders from certifying Officer ( e.g; DLC) at nominal cost say rs.3/page.
- -Shops & Estbs Act of the state; which may not lay down any notice period for employee but may lay down notice period for employer as per lengrth of service of employee…..
By equitable discretion the same notice period may be asked from employee by mutual understanding…. The contract of employment should promote equitable discretions or IT may be easily termed arbitrary.
Or the Act may which may lay down some notice period for employee and also may lay down notice period for employer… GO thru IT if the ACT applies to establishment and you are covered by the def. of ‘Employee’ as in Shops & Estbs Act Act. And any other enactment that may apply in your case..
Kumar Doab
(Expert) 25 December 2018
You may approach seasoned/employee’s trade union leaders
And Authorities/courts for relief. e.g;
Works Committee/Greivance Redressal Committee (if notified in state)
Labor Inspedctor/ALC/ALCC (State/Central as applicable in your case if you are covered by the def. of Workman as in ID Act)
or Labor Court/CGIT
The LOCAL Inspector at your location might also be Inspector appointed under Shops & Estbs Act,
Inspector appointed Payment of Wages Act ( This Act does not discriminate between Workman and Non Workman) if you are covered by the def. of wages under the Act.. GO thru the Act and amendments and Payment of Wages Rules in your state..
Civil courts (if you are not covered by the def. of Workman as in ID Act) and court may provide relief for breach of contract..and interest for delayed period..
You are probably engaged on monthly rated wages.
Daily wages=Monthly wages/28
Hourly wages =daily wages/8
All enactments are available on Dept. of Labor websie of the state..
In the meantime you may go thru threads on similar queries/Articles/Files etc and pick up relevant points e.g;
Articles under my profile;
“Employee can file complaint against Termination Also at City Where Management decided to Terminate
No charge of Unauthorized Absence on Employee after Expiry of Notice Period!
No Income Tax on Notice Pay of Employee
Prospects of relief from civil courts to Employees that are not covered as 'Workman' and by umbrella of Labor Laws”
The skilled approach by you or notice from your end or demand notice or communique from unions, or communique from authorities, legal notice may prompt the employer to clear the dues if any and issue correct FnF statement, relieving letter (with good comments) also...
Kumar Doab
(Expert) 25 December 2018
You may take help for any matter from, elders of your family, competent and experienced well wishers, seasoned PIP’s, helpgroups, community leaders, NGO’s, experienced colleagues, associations, religious scholars/leaders, influential persons, Employee’s/Trade union leaders, help groups for spouses (Husband/wife) etc and find a very able LOCAL counsel specializing in concerned filed of law e.g; Labor/Service matters as in your case, and well versed with LOCAL applicable rules, precedence, latest judgments etc …. and worth his/her salt, can advise you after examining all case related docs, inputs, evidences on record.
Obtain proper legal opinion in writing!
Avoid acting on your own on hearsay.
One should not fall for IT’s and entities loitering at online portals to allure unsuspecting querists. There are many threads on such instances at LCI also.
Online discussions are not substitute to in person discussions with a very able counsel of unshakable repute and integrity specializing in concerned field of law.
One should not fall for IT’s and entities loitering at online portals to allure unsuspecting querists……the personal details of unsuspecting querists/citizens get stored in databanks/compromised……hacked.
Not only your counsel ( if other very able counsel opine that 1st counsel’s advise was bad, misleading) many posing as Lawyers (actually Liar) have been raking up disputes at online portals including LCI on subjects like ; WILL, Nomination, Gratuity etc etc with their misleading, illegal advices and conduct..and have failed due to untiring efforts by some sincere and good natured Experts that indeed want to help and contribute at such portals. Such entities operate by forming gangs ( ikdi, dukdi, tikdi, chokdi and even more)….and attempt to deflect, divert to other members of their gangs to fleece the unsuspecting querists. Many of such entities have never been to courts and might have never won in any case and may not be able to count even on their fingertips. In the end multiple fake ID’s of such IT’s and entities get permanently blacklisted, shunted out at online portals and outside online portals and even society………and that is exactly what they deserve. Make a note of such entities and if the need be act to confine them to correctional centers; Jail, and let their cost and consequences be, heritable. Why such IT’s and entities litter nuisance at online portals: to hide their own weaknesses, and to satiate their insatiable itch and due to their infectious greed. One should stay away from such infected entities and hence away from such infection. You may post if anyone has ever asked /is asking for money from you have paid.
Such IT’s and entities keep on poping up at online portals with fake and new ID’s after their old ID’s are permanently blacklisted/shunted out and money fleeced from unsuspecting is finished.
There are such very able counsels at each location.
Check for such counsels at LOCAL; Labor Court/CGIT, CAT/School-Educational Tribunal/Civil Courts, HC, SC,..
You can also try for FREE legal Aid from Legal aid center (DLSA) that is usually within LOCAL courts complex..preferably from a very able counsel specializing in Labor/service matters.
Your counsels may opine that you can appear on 1st date, and obtain copies of petition etc to reply later ….and inform the court that you shall be engaging a counsel and appear thru your counsel….Or your counsel can appear and obtain copies of petition etc and reply later or your new counsel can appear for you.
Your counsels can advise after examining all docs/record/inputs pertaining to your matter and help you. You can also search threads on similar query in SEARCH option ON left Hand side of threads in Forum/Experts section. Having learnt a lesson, remember to consult beforehand for your matters or any matter about which you are not properly informed.
There have many instances of such entities operating with multiple fake Id’s at online portals.
The FEE of all LOCAL counsels at all LOCATIONS is not high/unreasonable as mis-believed by many.
Many counsels even at State Capital/Metro towns do not demand unreasonable high FEE.
IT is rather at online portals that unsuspecting querists are mislead as per many publications, by IT’s and Entities that pose as some Lawyer (actually LIAR) and flaunt/advertise firms that are not Law Firms (Actually LIAR’s Firms) to believe that LOCAL counsels are not knowledgeable..are incompetent.
In Reality the LOCAL counsels win cases in LOCAL courts at all LOCATIONS.
You can go thru/search the cases contested by any Lawyer at court website.
There have been many IT's and entities advising employee's to give up their salary, Gratuity etc !
Avoid such good for nothing IT's and entities!
Rest; Your own very able LOCAL counsel as already advised above, can advise you in person, after examining all docs, inputs in person.
Obtain proper legal opinion in writing.
Martin S.
(Expert) 25 December 2018
Shri Kumar Doab has given lengthy advice which if you follow will only feed one advocates family for next 10 years. Forget getting your salary from Sun Co.
Though its a good case. You should compare what you will claim, amount of expenses till you may get your claims through court which in all probability is doubtful as there is no offer letter or appointment letter involved at all. Think and proceed. All the best.
M V Gupta
(Expert) 26 December 2018
@Kumar Doab.
Dear Sir. Does the simple question posed by the querist require such big essay in reply? I feel our replies should be precis and to the point and clear and succinct.
ADV. SANKET S. BORA
(Expert) 11 February 2019
Dear Sureshji,
You can file an Insolvency Application against the employer, being an operational creditor u/s 8 and 9 of the Insolvency and Bankruptcy Code, 2016, provided the amount of salary is Rs. 100000 or more. The Insolvency Proceedings shall ensure faster Results.
In case you found the answer satisfactory, kindly press the 'Like' Button.
In case of further queries, feel free to revert.
Regards,
Adv. Sanket S. Bora
