Shahz Shahz (SSE) 01 March 2014

Salary never paid on time, Quit without any notice period.

Hi Good Day All,

I'm a Sofware engineer. I'm working with my current employer for the past 4 months, and now in probation period. On joining HR told me salary date was on 7th every month. But salary was never paid on time , they paid me on 27th, 15th, 20th and last month not paid at all..

On job offer letter it is stated that on probation period employer can fire me at any time without prior notice or pay. But if I had to leave I should serve 2 months notice period or pay them 2 months salary. And once if I submitted my resignation they will pay salary of 2 months only with Full & Final settlement.

(this point was not mentioned in offer letter).

I got a good offer from another firm. I told them my situation, and they don't mind about experience or relieving certificates of present company. (I have Total 7 years exp) They want to join me as soon as possible. I wanted to know what consequences I may face if I quit without any notice period.

I have a family depends on me.

Thanks for reading .. waiting for your valuable suggestions.

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6 Replies

Kumar Doab (FIN) 01 March 2014

Such matters are best resolved by applying goodwill, rapport and exceptional levels of persuasion, persistence, negotiation, reasoning skills, and must build favorable record in writing and generate irrefutable evidence.

However if employer or its employees in line management, HR are vindictive, rigid and bent on stepping on toes of employee then employee should not hesitate to approach Trade Unions, Lawyer/law firm, Lawful authority, along with elders in the family.

You may obtain the assurances given by next employer preferably in writing or submit carefully structured minutes of discussion in writing.

Defend your interest in best possible manner.

Remain amiable and gentle in office, but vigilant and firm.

Non Payment of wages is certainly a Breach of Contract. Trust, by employer. The employer has not conducted itself properly. This is a justified reason to separate. IN such situation the conditions like Notice Period should loose its sanctity.

The conditions stated by you are arbitrary, unfair and may not stand the test of law.

The payments of wages have to be made on pay day as defined in Payment of Wages Act, Shops and Commercial Establishments Act even if employer has stated so in offer/appointment letter or for that matter in any private agreement it has signed with employee e.g: offer letter, appointment letter, contract of employment etc…………………..and salary/wage/pay slip has to be issued, before payment of wages that should be signed by both employer and employee.

The employee can lodge a complaint the moment payment of earned wages is delayed even by a day and employer can be penalized for non payment of wages say Rs.7500/instance………………

Software companies are covered by (name of your state) Shops and Commercial Establishments Act and standing orders are applicable……………….If standing Orders are not certified Model Standing Orders shall apply.

As per Model Standing Orders the notice period during probation period is NIL and service certificate has to be issued to all employees.

Resignation is not Misconduct.

You may go thru: Sec:13, 14, 15, 16 17, 18…………………..

Employee should tender some reasonable notice period and must state notice period, effective date of resignation/last day in office in notice of resignation (supply thru redg. Post) and that no tasks/assignments are pending at his end as on date and routine duties that can be completed on day to day basis within and up to last day in office should be assigned to him and ask to whom he should handover the charge/company property if any..

Employee should submit final resignation (supply thru redg. Post) obtain NOC/NDC if applicable.

If there is a default on payment of wages there may be a default on PF, ESIC, TDS etc……….

Employee can approach:

----Employees Unions : There are employees unions of IT/ITeS employees and they have done good job.

--- Trade Unions e.g; CITU, AITUC, INTUC ............................

The trade unions are willing to embrace IT/ITeS employees and they are very effective too.

--- 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;

https://www.lawyersclubindia.com/forum/details.asp?mod_id=72011&offset=1#.UvYBGEeBmXV

You may proceed under the expert advice of your lawyer.

There are many threads on similar queries that you may find relevant e.g;

https://www.lawyersclubindia.com/experts/Regarding-the-notice-period-456141.asp#.UxHh30eBmXU

Attached File : 100188643 model standing orders industrial employment standing orders rules.pdf downloaded: 165 times

1 Like

Shahz Shahz (SSE) 02 March 2014

Wow, I really appreciate your detailed response.

It's wonderful to get such response.

If you don't mind I have one clarification to ask..

As per

INDUSTRIAL EMPLOYMENT (STANDING ORDERS) 13.(2) : No temporary workman whether monthly-rated, weekly-rated or piece-rated and no probationer or badli shall be entitled to any notice or pay in lieu thereof if his services are terminated, but the services of a temporary workman shall not be terminated as a punishment unless he has been given an opportunity of explaining the charges of misconduct alleged against him in the manner prescribed in Paragraph 14.

I understand from this point that on probation period notice or pay in lieu is not valid for both sides

(neither for an employer or for employee ). Am I correct ?

Kumar Doab (FIN) 02 March 2014

Yes, and the language posted by you is self explanatory.

Before you construe that the condition is applicable in your case it shall be appropriate to show all docs to a competent and experienced labor consultant/service lawyer at your location in person and confirm if the Model Standing Orders are applicable to your establishment and your designation is covered by it.

If standing orders are certified then you may get these examined and confirm if Certified Standing Orders cover your designation.

Of course designation alone does not decided employee is a workman or not..............

You are in which state and redg . office of the company is in which state?

What is your designation and nature of duties?

Have you registered your profile with NSR/NASSCOM?

Are you a member of any employees union, IT employees union, trade union?
The employees in your trade have united in many states and should unite to form unions.

https://www.itecentre.co.in/

https://ithiworld.wikispaces.com/News+Update

IT/BPO Voice of India | Facebook

UNITES Professionals

www.unitespro.org

https://www.wbitsa.org/

www.itpfindia.org/‎

https://itnitesunion.wordpress.com/author/itnitesunion/

https://www.amrc.org.hk/node/1088 CBPOP

https://www.freepatentsonline.com/article/Indian-Journal-Industrial-Relations/185430721.html

https://bpo.knowledgehills.com/Directory/BPO-Jobs/CBPOP-Centre-for-BPO-Professionals.aspx

The IT employees unions and Trade Unions can protect the interest of employees.

Let your lawyer structure your representations and build the record in your favor.

It shall be appropriate to consult a local labor consultant/service lawyer in person, show all docs and records, give inputs in person and proceed under expert advise of your lawyer.

The lawyer that has examined docs and inputs can advise you the best.

1 Like

Shahz Shahz (SSE) 02 March 2014

Yes, I will consult with local law professional and proceed.

You are in which state and redg . office of the company is in which state?

I'm from kerala and company is registered in kerala. It's a Limited company.

What is your designation and nature of duties?

My designation is Senior Software Engineer.

Basically I'm involved in technical aspect's of developing web sites like " lawyersclubindia.com".

Currently I'm not assigned to any critical tasks.

Have you registered your profile with NSR/NASSCOM?

No.

Are you a member of any employees union, IT employees union, trade union?

No. I was never aware about any IT employees unions.

Once again Thanks for valuable information's.

Kumar Doab (FIN) 02 March 2014

Trade Unions in Kerala are very active and very effective.

IT employees must have also united and should affiliate with trade unions and defend their interest.

Ask around and you shall be able to know the details.

>>> Kerala Shops and Commercial Establishments Act

2.Definitions: 4,6,7,9,

3.Exemptions

4.Power of Government to apply Act to exempted persons or establishments

5.Exemptions

5C. Duties of employer

7.Extra wages for overtime work

15. Power of Inspectors to act for employees

17. Application and amendment of the Payment of Wages Act:

{Thus Payment of Wages Act enactment becomes applicable to all commercial establishments and according to this enactment the wages should be paid in time and wage slip should be supplied and signed by both employee and employer.}

[You may refer to: Payment of Wages Act; Sec13A and 2: 3*[(i), (ia),

3*[(vi): "wages" means all remuneration……………

4: Fixation of wage-periods…………..

, 5. Time of payment of wages.-……….

13A. Maintenance of registers and records.-(1) Every employer shall maintain such registers and records giving such particulars of persons employed by him, the work performed by them, the wages paid to them, the deductions made from their wages, the receipts given by them and such other particulars and in such form as may be prescribed.

(2) Every register and record required to be maintained under this section shall, for the purposes of this Act, be preserved for a period of three years after the date of the last entry made therein.

, 14, 15, 16, 17A, 20…………..]

18. Notice of Dismissal: [ Seems to be NIL for service period less than 6 months].

[In contract of employment the service conditions should be equitable or the contract may be termed arbitrary]

26. Powers and duties of Inspectors

28.Employer to produce registers, records etc., for inspection

30. Maintenance of registers and records and display of notices

>>> There is a dedicated news service for IT sector in Kerala. YOU may go thru: