Recovery of salary paid after 3 years

Originally posted by : Mayur J
	Dear Experts, I have been issued a notice from a Big 4 consulting company for recovery of dues for termination of employment via a lawyer. The amount in dispute is Rs. 39.694/-. + interest of 18% p.a from my last working day ( 27.09.2013 till date i.e 06.05.2017) within 15 days. Following are the Facts I have, please let me know what i should do 1) My total tenure of working with the organisation was 17 days. i.e from 09.09.2013 to 27.09.2013. During this period i had attended office for all days and handled few clients. I had sent the resignation on 23.09.2013 to HR via email. 2) On my last day in office & after completion of all the exit formalities on 27/09/2013, I was relieved from office waiving off my one month notice & paying off one month salary by the manager/partner of my team as I had served only 17 days in office. 3) No document was handed to me demanding any amount due by me or any such recovery of any dues with the organisation. 4) After 3 days, i.e on 01/10/2013 salary of Rs. 29,802/- was deposited in my Salary account, I called up the HR and I was told that this amount was paid to me for serving the organisation for 17 days. 5) Later after 7 months , First email of recovery was received on 2nd May, 2014, i.e 7 months demanding Rs 39,694/-. After this they kept on sending the emails but i ignored them,  Secondly the breakup of this recovery was communicated in one of the email on 21st September, 2015, which indicated Rs 39,694 payable, out of which Rs 29,802 being recovery of salary paid for the month of Sept, 2013. As mentioned earlier, the Notice period pay was waived off, which is clearly indicated in the settlement sheet emailed by Payroll department.   Sirs, my content is - Why are they demanding the salary they paid me for the work i did? The notice period pay is waived off, which is there on record & mentioned in the Final settlement sheet mailed to me.   Now they are demanding the amount along with interest orelse to face the consequences in accordance with the law and pay the legal cost arising from this event. Please suggest what should be done. Thanks in advance Mayur

You have posted that:

"the Notice period pay was waived off, which is clearly indicated in the settlement sheet emailed by Payroll department."

It is in your favor.

Does the said sheet show attendance in yerms of no. of days, earned wages and   provide calculation, and waiver of notice period?

If suitable attach the sheet.

You may erase the logo, names etc  to maintain the confidentiality.

Notice Period/pay is part of service conditions that are applicable to establishment/employer/employee and governed by various enactments.


In your case:


---It shall apply in accordance with various enactments that are applicable to establishment/employer/employee…………………and these shall prevail upon any private agreement that employer has drafted and signed with you e.g; appointment letter/contract of employment/HR policy/Employee Handbook etc etc …………


Any clause that is violative of governing enactments shall be void.



---In case you are not covered by either of the enactments then as per agreement that employer has drafted and signed with you e.g; appointment letter.



So the notice period/pay of 30 days may not necessarily be applicable in your case.
 

While posting such queries employee should post basic information! 



What is this establishment; 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?


Do standing orders (model/certified) apply to establishment and your designation?



Was ever any stinker, memo, show cause notice on any misconduct issued to you? 


Are you a member of employee’s/trade unions?

The earned wages can be calculated by you also;

Monthly wages/26= daily wages

daily wages/8=hourly wages

OT= double wages.

Thanks for Prompt reply

I have attached the sheet sent by the payroll team to me. I have erased the name & logo, rest everything is unedited.

Thanks again

What is this establishment; Commercial, Industrial? 

A- Commercial

What is its nature of business say; 

A- Chartered Accountancy Firm

How many persons are employed in it?

A- Easily  500+ employees

What is your designation and nature of duties?  

- I was appointed as Associate Executive ( Fresher CA )

How many persons report to you? 
A- None

Do you have any power to sanction leave/increment/appoint/terminate/appraise etc etc ? 

A- No

You are in which state? 

A- Maharashtra

Since how many months you are working?
A- Just 17 Days

Was ever any stinker, memo, show cause notice on any misconduct issued to you? 
A- No

Are you a member of employee’s/trade unions?

A- No

2006: In a landmark order, the Bombay high court has held that the office of a chartered accountant was not a "business and commercial'' establishment. A division bench of Justice S B Mhase and Justice S R Sathe struck down as "unconstitutional'' sections of the Bombay Shops and Establishment Act that included CAs within the definition of commercial establishments.

Chartered Accountancy Firm may not be covered by the Bombay Shops & Estbs Act and may noy have to abide by the labour laws that are part of the Act.

Check the latest position locally.

The Bombay Shops and Establishments Act, 1948: 2(4) (27),

And commentary in this section in color code;Red

“Amending Mah. Act 64 of 1977 sought to enlarge the definition of 'Commercial establishment' by including the establishment of a legal practitioner, architect, engineer, accountant, tax-consultant and certain other categories. But, there are no common properties ot characteristics to be found on other commercial establishments and the establishment of legal practitioner which have been herded together. There is no rational basis for herding them together and the conclusion that they have been brought together arbitrarily i inescapable. Therefore, the inclusion of the establishment of a legal practitioner in th context of the connotation of commercial establishment does not answer the test о reasonableness and the inclusion would therefore, be violative of Art. 14 of the Constitution of India also on the ground of unreasonableness, irrationality and arbitrariness. Consequently, the provisions of the amending Act (Mah. Act 64 of 1977) insofar as the included the establishment of a legal practitioner in the Bombay Shops & Establishment Act 1948 are struck down.”

“The Office of Chartered Accountant with article clerks and one salaries ordinary clerk is not a commercial establishment so as to attract the provisions of the Act. N.E. Merchant v. State 1968 LIC 1034 - AIR Born. 282 1968 Cri.LJ 1041.”

https://mahakamgar.maharashtra.gov.in/images/pdf/the-bombay-shops-establishments-act-1948.pdf

Check the latest position locally.

If same postion persists the Sec;66 in the Act on Notice period may not be any reference and use to you.

In that case you may seek recourse and refuse in waiver of Notice period/Gross Deduction=NIL,  as mentioned and highlighted by you in your post and attachment i.e. FnF statement.

Management/employer can waive off the notice period/pay.

It is not clear if in the communications to you after issuance of FnF statement the Management/employer had withdrawn the waiver of the notice period/pay.

However from attachment i.e. FnF statement it can be made out that  Management/employer had granted the waiver of the notice period/pay.

The limitation ( 3years) might be another lacuna in your case.

From the appointment letter issued to you, you can calaculate the salary/allowances etc to be paid to you, to be paid by employer in case of termination ( on Pro rated basis), resignation by employee ( on Pro rated basis)……………

Some employers make a clear descripttion on basis of Notice pay e.g; basic/gross/CTC.

It is not clear from your designation what exactly were your duties!

Apparently from the FnF statement it is felt that you were NOT paid Stipend and were paid like a regular employee.

Might be you were recruited as some Trainee for name sake to avoid PF.

If you were taken in as some Trainee then some Scheme, Rules, Standing orders to recruit Tarinee’s are ought to exist.

You may also go thru:

Kerala High Court

T.K. Menon And Co., Calicut vs District Labour Officer

:36

https://indiankanoon.org/doc/12717/

Madras High Court

Fraser And Ross, Chartered ... vs Sambasiva Iyer And Ors

:21

https://indiankanoon.org/doc/1229990/

Gujarat High Court

M/S C. C. Chokshi & Co vs Regional Provident Fund on 13 September, 2013

https://indiankanoon.org/doc/94709509/