Non-payment of salary
subramanian
(Querist) 16 April 2016
This query is : Resolved
my employer who is in the news /headlines is a rajya sabha MP and is a big industrialist. He has not paid salaries of many employees including myself. Money in pf also swindled. he is absconding and government and banks are behind him and filed cases. Supreme court also asked govt. and him to appear and explain. Enfor. directorate is also filing cases. all are going slow. Can we the employee group file criminal case u/s 420 as one of our colleagues was in accounts department of the same company and is a CA and said that salary non payment is a receivable /sundry debtor for the company/employer and since salary is due as per contract non payment amounts to cheating. we do not have any money to fight cases in courts for long time - we will become bankrupt once we start filing cases and no good lawyer will do it for free. will sec.420 be feasible ?so that it is non bailable ? also why PF authorities have not slapped 420 on him ? can we write a write petition to Hc/SC to force PF authorities to file sec. 420 on him.
Kumar Doab
(Expert) 16 April 2016
Employees can file complaint u/s 406, 420.........
Winding Up Petition:As unpaid wages/promised amounts are debt on employer. However you may join the list of creditors (banks/lenders/EPFO etc).
PF; All employees that are affected may form a union/forum and write to RPFC of jurisdictional PF office, Addl CPFC, CPFC and pursue thru RTI.............They can also write to Vigilance Chief of EPFO.
You may go thru the following thread , pick up relevant points and discuss with your counsel(s).......
http://www.lawyersclubindia.com/forum/Company-in-liquidation-77247.asp#.VxKxlNQrLIU
{Assuming the company is under liquidation, the order of priorities will run as follows:
1. EPF dues
2. Workmen’s Compensation Dues
3. Sales Tax Dues
4. Dues to Banks (pari passu with Workmen’s Dues)
5. Workmen’s Dues (pari passu with Bank Dues) –}
subramanian
(Querist) 16 April 2016
thanks you gentlemen, but our question still remains. company is not under liquidation. It is doing business and share price is totally down. Most shares are pledged to banks. The steps mentioned by youlike workmen's copensation, sales tax, dues etc. all are fine. All these are on and employee forum is involved in pursuing legal avenues but all will take years by which time many employees would get old and die. Immediate query is : in addition to all the above, since banks have clearly informed Enforcement direcotrat that there is diversion of funds; misuse and he is termed wilful defaulter - can the aggrieved employees, in addition to all above normal routine proceedings file a separate criminal case u/s 420 for cheating and also writ petition high court / sc to instruct PF authority to file criminal case against employer. The PF authority anyway is doing its bit but no criminal process is launched till date. once criminal case fir is filed, then police has to act. Also for PF authorities have to act.
Kumar Doab
(Expert) 16 April 2016
Companies Act, 2013;Sec;447.............You have hinted at fraudulent activities and that due to it your salary was not paid.If employee is personally affected due to frauds by employer, employee can seek penalty.Approach Registrar of Companies.
Employee can lodge criminal complaint....................including but not limited to dishonest intentions.
The there shall be issues with TDS, ESIC etc
Payment of Wages Act, Provisions of Shops & Estbs Act can be invoked....
PF; Complaint with Chief Vigilance Officer ( cvo@epfindia.gov.in ) of Ministry of Labor can be filed. If company has an approved trust it can loose the exemption. EPFO maintains the list of defaulters on its website. Criminal Complaint with police can be filed. Police can proceed without permission of PF dept.It is offence under EPF Act and also u/s 405, 406, 409 of IPC.In case, PF department does not take action, the employee can go for mandamus against the PF department .
Then it may be checked if company has not deposited but accounted in books.In such case even auditors shall be facing the heat.Failure of company to deposit provident fund is to be reported by the auditor in CARO, 2003 issued u/s 227(4A) of the Companies Act, 1956.
If the company has no money/has become insolvent then PF dues (Employer and employee's contributions) are to be included in debt;Employees’ Provident Fund and Miscellaneous Provisions Act 1952;Sec;11.....
You may also go thru many threads at LCI e.g:
http://www.lawyersclubindia.com/forum/Pf-fraud-96224.asp#.VxMbatQrLIU
You may also go thru:
Kolkata High Court (Appellete Side)
In The Case Of Employees State ... vs S. K. Aggarwal & Ors. 1998 on 1 April, 2013
https://indiankanoon.org/doc/172250760/
subramanian
(Querist) 30 April 2016
Thank you dear legal hawks. You all have given us lot of clues. Specifically in the case of a dozen employees, fixed deposits were also made to invest in FD of their sister concerns which are long when we were in the parent company's employment with promise of 19%interest for which we all trusted and invested...the sister concerns are also now not paying and it is now more than 18 years we kept on hoping. Is there any possibility of simultaneously filing criminar 420 cases on sister company all directors and also winding up petition ?
Kumar Doab
(Expert) 01 May 2016
There seems to be a possibility.
You may discuss with your counsel(s).......
