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Non payment of salary till end of notice period

(Querist) 13 January 2015 This query is : Resolved 
Dear expert
My friend working for a big company.She has completed 6 months in the company but has not been confirmed due to dirty company politics and is on probation.

Now she want to resign from her job.As per her appt letter states there is notice period of 2 months for any employee of this company whether confirmed or probation.

However company HR says that if she resigns she will have to serve 2 months notice and her salary will be on hold for 2 months and paid on successful completion of notice period.
This the HR says is because the company needs security that she will complete her notice period and not run away.She told HR she is ready to give undertaking that she will serve notice period but HR not listening.

But for salary person working without salary for 2 months is difficult. Also there is no assurance that company pay full 2 months salary after notice period over.
Is this legal.
Can my friend ask for 1 month salary to be paid at the end of first month notice period and the second month salary to be paid on completion of total notice period. Also she has no leaves left.

Please help as HR & company harassing poor girl

Dipak
ROHIT SHARMA (Expert) 13 January 2015
1. I do not think the company will release her two months notice pay salary till the time period expires and she does actually serves during that period. If they do not pay after that then legal action can be taken by filing a summary civil suit u/Order 37 Rule 2 of C.P.C. to recover the due money. This may be difficult for her but then she should be wise and face the situation without any tension.
ajay sethi (Expert) 13 January 2015
serve the 2 months notice period and collect salary at time of leaving the organisation
Rajendra K Goyal (Expert) 13 January 2015
Serve the notice period first.
Kumar Doab (Expert) 15 January 2015

On the strength of which law of the land or rules/policies of the company the HR personnel have made such statement?

Apparently the stand of the HR personnel hence employer is illegal and a transgression!

Similar queries have been discussed in many threads at LCI too……


During probation period employee has no lien on employment and thus Notice period applicable during ‘Probation Period’ is NIL and you may download the various judgments including by the Constitutional bench of Supreme Court of India from another thread at:

http://www.lawyersclubindia.com/forum/Whether-notice-period-has-to-be-given-during-probation-91808.asp#.VLd3z8uUcqM



and wages have to be paid on the fixed day of payment of wages and salary slip signed by employer and employee has to be supplied to employee and employee can lodge a complaint the moment payment of wages is delayed even by a day and employer can be penalized for every instance of delay of payment of wages…………….

You may go thru: Payment of Wages Act :Sec13A, Min.Wages Central Rules26(3,4) and also (name of the state) Shops and Commercial Establishments Rules…………


The private rules-policies of the employer even if signed and accepted by employee can not prevail upon various laws of the land, enactments/Acts/instruments of law/statues and employer personally can be held responsible for violations and penalized.

The employees suffer due to various reasons like :::: employee’s do not unite and form unions, do not become member of employee’s unions, trade unions, do not form Grievance Redressal committee/Works Committee (that are an authority as per ID Act), Internal Councils, Guilds etc…………………..and remain ill informed………………….and do not approach able Labor Law Consultants/Service matter lawyer………………..and thru their able counsel:

Inspector appointed under :Payment of Wages Act, (name of the state) Shops and Commercial Establishments Act……………(The Labor Inspector in o/o Labor Commissioner might also be functioning as Inspector under these Acts………………………and you may inquire at your location), O/O Labor Commissioner…………….Officals in Dept. of Labor in the state/Central Govt…………….

It takes years of hardships and expenses by parents and students to get qualified and become employed to earn livelihood and parents and elders should encourage their wards to participate in activities during student’s days and become properly informed.

You have pointed out various issues and it is time that the affected employee starts building favorable written record………………………and employee should know how to do it without any emotional outburst and remain amiable and gentle but Act firmly and defend his/her interest without any affect on his /her career, employability…………………….and if HR personnel or even employer personally gets penalized/punished then let it be.

The moment employee realizes that dirty politics prevails, he/she should separate quoting specific reasons in writing in gentle manner……………………..and thus should be able to explain the next employer.

The employee should at once download the HR policy/Service Rules and Regulations mentioned in appointment letter, employee handbook, FnF policy,Exit Policy etc and check if there is any such clause in it……………. and if yes then may apply to good offices of appointing authority to either release monthly salary on fixed pay day and second month’s salary on last day/date in office along with other FnF wages/payouts as per correct FnF statement………….or release say 80% of the payouts so as to avoid financial and other hardships to employee and release 20% in FnF payout on say last date in office………………………………….and second option is to contest the viewpoint of HR personnel………… in writing with good offices…………….and if no relief is provided she may approach other forums that includes………………..Employee’s unions/Trade unions, Lawful authorities, courts of law…………………..

1. Extension of Prob
ation Period: Was any appraisal conducted and copy provided to employee::::::: Has the probation period been extended in writing and quoting some reason or after due process of appraisal:::::::does the employee have copy of appraisal matrix?

If it is stated in Job advt,interview call letter,offer letter,appointment letter, HR policy/Service Rules and Regulations mentioned in appointment letter,employee handbook ………………………etc that the process of appraisal should have been conducted before completion of probation period to arrive at a decision to confirm or not then if such activity is not conducted in an upfront and transparent manner then employer is unworthy of being employed with.

Employee can express the actual and factual reasons to good offices of appointing authority and seek audience and redressal…………if no fair appraisal was conducted and extension of probation period was not communicated in writing…………………..and quote it in notice of resignation.

If probation period has been extended in writing then employee has a copy or if it verbal communication employee should collect evidence (audio/visual/witnesses/minutes of discussion) ………………..



2. Notice Period: Is part of service conditions that are governed by various enactments e.g. (name of the state) Shops and Commercial Establishments Act, Standing Orders (certified/Model) applicable to the establishment/employer/employee and no private policy/rules/policy drafted by employer and signed with employee can supersede an ACT/INSTRUMENT OF LAW/STATUE……………………….

This has been duly discussed and explained in other thread mentioned above i.e.
http://www.lawyersclubindia.com/forum/Wheth

er-notice-period-has-to-be-given-during-probation-91808.asp#.VLd3z8uUcqM


AS per (name of the state) Shops and Commercial Establishments Act : Notice Period applicable for 6 months of service might be NIL. As per this Act the notice period is not more than 30 days in any case.

Standing Orders: might be applicable to the establishment and if not certified Model Standing Orders shall apply.

Model Standing Orders: notice period during Probation Period is NIL and after confirmation it is 30 days only….

Your Labor Law Consultant/Service lawyer may opine that the person shall be covered as per definition of ‘Employee’ as in (name of the state) Shops and Commercial Establishments Act, and as ‘Workman’ as in


ID Act….


3. Payment of wages and even FnF wages: has to be made by the fixed day of payment of wages.


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