Employer not processing my full and final settlement even after 1.5 months since i left the company

Did u resign.or the.company terminated?

Have you sent a letter remiding the employer about settlement of the dues to you?

If not send a communcation by registered post demanding your F & F settlement  and stipulate a time period.

If there is no response to your demand letter you may resort to legal action by first sending a legal notice through a lawyer and then further legal course of action as per procedures of law

I have resigned.

 

Issue a legal notice before proceeding further through a local prudent lawyer.

Ok Thanks 

But what if I joined the competitor, I did sign any contract. But the normal paper I had signed is attached has a cluase on page 2 clause 10.

This paper was not signed at the time of appointment, but time when new management took over, Period when covid was in full swing dated 27_03_21 

Amit Pandhare 

Dear Querist,

1. The information given by you is pretty inadequate to give you appropriate advice. You have just mentioned thatEmployer not Processing my full and final settlement even after 1.5 months since I left the company and thathe is threatening me, as he will file a case against me as I joined a competitor company.

2. To appropriately advise you the following information must be shared:-

1. The type of company you are working with.
2. Type and nature of duties.
3. The amount of salary/remuneration which you are getting as per the letter of appointment.
4. The above information is required to determine as to if you’re appointment is covered under:-

(i) Contract Labour (Regulation and Abolition )Act, 1970

(ii)  Shops and Establishments Act 1953.

(iii) Industrial Disputes Act

(iv) Factories Act

3. In fact, the type and nature of duties will determine the further course of legal action and the forum wherein your case should be addressed. For example, for the cases of workmen/workers, in the matter of pending dues, a worker may approach the office of the Labour Commissioner. However, for a manager or somebody inan administrative position, the right forum would be to file a money recovery suit in civil court.

4. A person working in a purely managerial and/or supervisory capacity does not fall within the definition of a workman under the ID Act. However, when a person performs multifarious functions, the nature of the main function performed by the person has to be considered to determine if the person is a "workman."

5. There is a need to realize that with four new labor codes coming including Code on Wages, 2019 and Industrial Relations Court 2020, there are corresponding legal implications. Under the Code of Wages, 2019 any worker in a supervisory role who draws more than Rs 15,000/-has been excluded from the definition of worker whereas in the definition of employee, there is no threshold of salary. In fact, under this new Code of wages, 2019, after the resignation of an employee from the service, all the dues of the employee have to be mandatorily be cleared within two working days of his resignation. Whereas, your employer has not cleared your dues even after 1.5 months of your leaving the job. This is a clear-cut violation of statutory provisions of the Code of Wages, 2019.

6. In the Industrial Relations Code 2020, under the new definition of worker in sec 2(zr), working journalists, sales promotion employees, and employers in supervisory roleswho earn less than Rs 18,000/- are covered.

7. To address the situation regarding your pending dues and ensure a proper course of action, you can take the following steps:

(A) Lodge a Complaint with the Labour Commissioner: (If your salary/remuneration is less than  Rs 15,000/-in terms of the Code of Wages 2019 or less then Rs 18,000/- as per the Industrial Relations Code 2020 coupled with the nature of duties performed by you).  Initiate the process by filing a formal complaint with the labor commissioner. This complaint should emphasize the non-payment of your remaining salary and gratuity and the aspect thatunder this new Code of wages, 2019, after the resignation of an employee from the service, all the dues of the employee have to be mandatorily be cleared within two working days of his resignation must be mentioned in your complaint.The labor commissioner will engage with the company to seek a resolution. Should the company neglect to comply, the matter will then proceed to the labor court.

(B) Serve a Notice to HR and Management:Before escalating the matter to court, it's advisable to issue a formal notice to the HR department and company management. This notice will bring their attention to the pending dues and allow them to address the situation without legal intervention.The following aspects of the legal notice are important:-

(i) The documents that would be required for sending the legal notice. These are as under :-

•  A Copy of the Employment Contract.
•  A Copy of the Bank Statement.
• A  Copy of Appointment Letter.
•  The details of all additional Benefits and Perks.

(ii) In the said legal notice, it is warranted to bring out the following essential legal aspects on record for the attention of HR &Management:-

• That under this new Code of wages, 2019, after the resignation of an employee from the service, all the dues of the employee have to be mandatorily be cleared within two working days of his resignation and you as the employers are still holding the dues of the employee, thus while eating the statutory provisions under sec 17(2) of Code of wages, 2019.
• The Legal doctrine of exhaustion of remedies prevents a litigant from seeking a remedy in a new court or jurisdiction until all claims or remedies have been exhausted (pursued as fully as possible) in the original one. That is why this legal notice is being sent to HR and management to exhaust the remedies before moving to the appropriate forum for claiming the legitimate Dues of an  employee
• From time to time various courts in India have held that an employee is entitled to interest on delayed payment of salary.

(iii) Manager or Executive Level Employees: If you hold a managerial or executive position within the company, you also have the option to pursue legal action through the civil court under Order 37 of the Court of Civil Procedure. This particular avenue, known as a summary suit, can expedite the process compared to the standard proceedings in civil courts. However, it's recommended to explore other available options before considering this approach, as it is usually reserved for more complex cases.

(C) As far as your issue of being threatened by the previous employer threatening of filing a case against you when you joined a competitor company, is concerned, the following issues can work in your favor:-

1. The fact is that there Para 10 of your agreement on page 2 out of 4 pages of agreement talks of noncompete clause. However, as claimed by you in one of the answers to experts on this forum that this paper was not signed at the time of appointment, but the time when new management took over, the Period when covid was in full swing dated 27/03/21 can come in handy in your favor as this is an afterthought by the management and you can always play upon a line of argument that had you known this clause at the time of appointment, you might have possibly all the management to remove such a clause or possibly could reconsider your decision to join the appointment.
2. Section 27 of the Indian Contract Act-1872 provides that - Every agreement by which anyone is restrained from exercising a lawful profession or trade or business of any kind, is to that extent void. Normally, in the matter of noncompete clauses, Indian courts have consistently refused to enforce post-termination non-compete clauses in employment contracts, viewing them as “restraint of trade” impermissible under Section 27 of the Indian Contract Act, 1872 (the Act), and as void and against public policy because of their potential to deprive an individual of his or her fundamental right to own a livelihood.
3. In the case of Desiccant Rotors International Pvt Ltd v Bappaditya Sarkar &Anr (I.A. No.5455/2008, I.A. No.5454/2008 & I.A. No.5453/2008 in CS(OS) No.337/2008), the Honourable New Delhi High Court held that the restrictive covenants were primarily designed to protect its confidential and proprietary information, the High Court ruled that in the clash between the attempt of employers to protect themselves from competition and the right of employees to seek employment wherever they choose, the right of livelihood of employees must prevail.
4. In the case of Niranjan Shankar Golikari Vs Century Spinning and Manufacturing Company Ltd., the Hon'ble Supreme Court observed that restraints or negative covenants in the appointment or contracts may be valid if they are reasonable. Now the point is you can always contest the opposite party even if they sue you in a court of law for joining a competitor despite having signed a noncompete clause on the ground that the so-called negative covenants in the appointment cannot be held to be reasonable for it restraints you for picking up any job suiting your profile for three years which is a case that restraint is not reasonable.

Sir

 

Sorry for replying late.

 

Type of company __Design development and manufacturing company_Industrial valve.

 

Type of nature of my duties _ Sr. Manager Design 

 

Rs. 1.1 lacs net salary 

 

I feel this will come under factories Act.

 

I got another notice attaching.

 

This is Japanese own company driven by Indian management.

 

I have sent the letter for clearing my full n final. before going legal, I want to put this at International headquarter Japan.

 

Request you help me to draft a letter with legal terms stating against noncompete clause and Request for clearing my dues at earliest.

 

Do I require to answer for noncompete clause as it is baseless as per my case please suggest.???

 

Amit Pandhare 

 

9820039209

Dont worry about legal notice. As per labour laws there is no law like bonded labour laws. You are not a bonded labour. You can anytime leave the company without any notice as it is private company.

https://pgportal.gov.in/

Go in this website and complain online about this company and then see how the company will pay you and settle the case.

What if I left my previous company and the new company agreed to settle my dues paid in the previous one if I join within a particular time period.

But now even after 4 months have passed they aren't responding well for my fnf settlement done to my previous employer 

I even have the conditions on my mail sent by the current employer about dues payment to me by this new company 

Facts, as disclosd in the above posting, suggests the deeper issue that you have really joined a competitior and there has been unethical understanding with the  second employer. Professional legal advice required  to sort out issues that are complicated. It is inevitable that documents need to be perused and issues discussed.

Send a formal written reminder to your employer requesting an update on your full and final settlement. If there is no response or resolution, consider seeking legal advice or contacting labor authorities for assistance.