Query relating to labour law
CS Jatinder Kapoor
(Querist) 27 February 2014
This query is : Resolved
one of our clients was working in a private firm from last eight years and left the job.
- His employer didn't pay him salary of last two months, bonus and other benefits.
- Employer also refused to sign provident fund form and sent a letter to provident fund organization that this employee has not resigned from the job and he is absent from the duty.
- the salary was being paid in cash only.
now what remedies are with us to get our dues?
plz advice me.
Devajyoti Barman
(Expert) 28 February 2014
PF can not be withhold;Lodge complaint with PF Commissioner.
It is a criminal offence.
CS Jatinder Kapoor
(Querist) 28 February 2014
sir
we had already lodged a complaint and order were issued by the department to the employer to sign the provident fund form. And on receiving this order from the PF Deptt. the employer has given a reply. I am writing the exact wordings of employer as follows :
" This is to inform you that this employee is absent from duties since October and till today the employee has not submitted any resignation nor we have given any relieving letter to him. As per our record he is absent from duties."
sir, I want to bring into your notice that due to a quarrel with employer, the employee left the job and neither this employee gave any resignation nor any intimation was received from employer.
Kumar Doab
(Expert) 28 February 2014
During the quarrel cited by you if the employee was verbally fired then employee may quote it and close the matter. Was it since employee was not paid for last 2 months?
If yes employee may claim notice period/pay has lost its sanctity as employer has breached the contract by not paying the earned wages.
Employer can be penalized for non payment of wages. The employer has to maintain record of payment of wages in various forms and registers prescribed under Payment of Wages Act, Shops and Commercial Establishments Act…
The employer may not agree now so as to square off the dues by adjusting notice pay.
The employer may also claim that the employee did not handover the charge, company property hence he was not relieved.
Ask the employee again if he had submitted notice/resignation by ordinary post and supply the copy again.
If the service rules, conditions, standing orders, T&C in appointment letter state absent beyond 10 days would amount to Misconduct/Loosing line on employment the employment could have been terminated.
Structure the representations in consultation wit local Labor Consultant/Service Lawyer and demand all payouts/documents e.g; Salary, Bonus, Notice of Determination of Gratuity, Payment of Gratuity, Leave Encashment, Incentives, Reimbursements, OT, etc by bank DD only salary slips of all months of employment, PF a/c slips of whole tenure of employment, Form 16, service certificate, Relieving letter, NOC/NDC , ESIC card,etc…………………..by redg. Post only so as to reach in next ………………….days.
If there is a default on payment of wages there may be a default on PF, ESIC, TDS etc……….
Employee can approach:
----Employees Unions
--- Trade Unions e.g; CITU, AITUC, INTUC ............................
--- Inspector under(Name of your state) Shops and Commercial Establishments Act, If it is commercial establishment.
The employer has to maintain and submit requisite forms and registers according to Shops and Commercial Establishments Act.
If the employer makes false entries it is offence.
--- Inspector under Payment of Wages Act: applicable to all employees drawing wages up to Rs.18000/pm as per def. of wages in the Act.
You may refer to: Payment of Wages Act; Sec13A and 2: 3*[(i), (ia), 3*[(vi), 3, 4 ,5, 13a, 14, 15, 16, 17A, 20………….. and if the Inspector agrees to cover you may immediately submit Form’N’ for recovery of wages.
--- O/o Labor Commissioner
--- ESIC Inspector;
--- RPFC in nearest PF office
--- ITO; TDS where you file your ITR
--- CIT-TDS (jurisdictional) where company files ITR
----Lawyer/Law firm
---Civil Court
Employees have been contemplating to file criminal complaints u/s 406, 420……………………………and to approach employer as creditors treating unpaid wages as debt on employer e.g;
http://www.lawyersclubindia.com/forum/details.asp?mod_id=72011&offset=1#.UvYBGEeBmXV
You may proceed under the expert advice of your lawyer.
CS Jatinder Kapoor
(Querist) 28 February 2014
Thanks a lot Mr. Kumar
I am sure that ur advice will help me a lot to resolve this case. In case if there is any further query I will disturb you again.
Regards
T. Kalaiselvan, Advocate
(Expert) 01 March 2014
Hope Mr. Kumar Doab's opinion and advises are suitable to you, you may proceed accordingly.
Kumar Doab
(Expert) 01 March 2014
It is felt that you are yourself a lawyer.
The employer has already submitted a reply to a lawful Authority and is expected to maintain its stand.
The employer is duty bound to conduct inquiry and address the matter that lead to quarrel.
Probably the dignity of the employee was touched.
Therefore you may drive the case and defend the interest of your client.
Lawyers are skilled in arbitration, conciliation, negotiation and the matter may get resolved by the skillful handling by a lawyer.
It shall be appropriate to show the job advt, job application, interview call letter, offer letter, selection letter, appointment letter, STANDING ORDERS APPLICABLE TO THE ESTABLISHMENT (CERTIFIED/MODEL) AND EXTENDED TO YOUR DESIGNATION, HR policy, Service rules and regulations, reply of the company to RPFC………………………………………….to a competent and experienced Labor consultant/service lawyer at your location.
