Employer withhelding last month salary and asking to wait 45

>>> As per designation of Asst. Manager you (and others as per their designation) and as per their duties on record, may/may not be covered by umbrella of Labor Laws. Retrenchment compensation may/may not be possible for employees that are terminated.

Your own very able counsel specializing in labor/Service matters, can examine your inputs on duties on record and advise you if you would be covered by  the def. of Workman as in ID Act, ‘Employee’ as in Karnataka Shops & Estbs Act.(Like wise for others)

I am sending you a few links and you can relate and pick up relevant points.

The employer can and is likely to assert that you and others are not covered, as Workman/Employee.

The notice period in your case is 2 months and might be same in case of others.

It is not clear when last salary was paid to others and what is pending?

As calculated for you everyone may calculate for each one and decide.

You may go thru;

Industrial Disputes Act; Sec2(s),2(oo), Chapters V-A and V-B, Sec:25F,25F(b)

https://indiankanoon.org/doc/500379/

And

THE KARNATAKA SHOPS AND COMMERCIAL ESTABLISHMENTS ACT,

2(e) (g)(h),3,39

https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/94256/110576/F-1357361103/IND94256.pdf

THE KARNATAKA SHOPS AND COMMERCIAL ESTABLISHMENTS RULES, 1963

https://karlabour.in/sahayoga/template/default/images/pdf/39.pdf

>>> Another Perspective:

You have a meeting on Tuesday.

Which Tuesday: Tomorrow?

The time is short.

Since you have your own apprehensions.

Who will clear BGV in future; this third party HR?

Has employer communicated in writing to you that:  it has authorized third party HR?

If yes for what and what does this authorization include?

Check and clarify at your end.

Try to get a copy.

Discuss and firm up and minute all point in writing with third party HR.

e.g;  As posted by you the assets shall be handed over on the day pending payouts are handed over in cash, on the spot.( (e.g; we don't want to return the laptop if the employer is not willing to settle the dues and relieving on spot). (The HR may not agree citing its contractual obligation with employer and having NO authority. It may agree to come back on it.)

Prepare and submit your own FnF statement showing the payables by employer e.g; earned wages/pending wages and payouts/leave encashment/bonus/OT/reimbursements/incentives etc and handover under acknowledgment and request to verify. Determine the cost of old Laptop. ( The HR may point that it shall issue notice and/or lodge complaint to recover laptop).

Ask for Relieving Letter and Experience/Service certificate hard copies as well in addition to soft copies.

Get a certificate that Laptop is collected in perfect working condition and NO claim on it is pending, towards employee. (The vendor engaged by employer may claim that damage was done. If possible obtain technical report on your own beforehand.)

Get a communication that Notice period for all employees is waived off.

Ask to call back termination order in writing and accept resignation (back dated before date of termination) and notice period is waived off. ( Try if you can, to get insertion that termination was issued since company was being closed)

Obtain confirmation: BGV shall be cleared in writing with a copy to employee (with good or favorable comments).

Try for: Severance package, if possible…………………..Lay off, Retrenchment Compensation, if applicable.

Obtain provide salary slips of pending months, handover of charge, NOC/NDC, acknowledgment of assets etc  

Include any other relevant point that comes to your mind.

If you (likewise all employees) have any tax relief to be claimed keep the receipts ready for submission.

Minutes of meeting may be recorded and circulated.

Submit everything under proper acknowledgment.

>>> If possible ASAP firm up your next venture and convince the next employer to absorb on the strength of copy of resignation and its acceptance ONLY and without Relieving Letter and Experience/Service certificate, as you can not submit it, until it is issued to you.

Here you need to convince on BGV and its likely failure also, since you are unwilling to return Laptop (since you’re a/c is not settled and you and others have apparently more dues on employer than dues of employer on you.)

The next employer can agree by its sweet will.

You are closes to the facts and you need to apply your own judgment.

There are precedence’s and publications showing that everything is settled.

There are precedence’s and publications showing that Relieving Letter and Experience/Service certificate are issued but pending payouts, Form 16 is not issued.

As communicated by HR, it may issue soft copies of Relieving Letter and Experience/Service certificate by next day and may not issue pending payouts, salary slips, and Form16 within next 44 days.

Or everything may be settled within 45 days.

Within 45 days the third party HR may agree or may not agree that assets are in order/working condition/damaged etc.

HR may not agree to any of your demands/requests.

You can ask to supply a communication from employer that company is closing/laying off etc due to reasons……………and employer has authorized third party HR M/s………………made available sufficient funds to clear the dues with third party HR.

You can also decide between yourself to involve employee’s/trade unions, dept. of Labor officials, Grievance Redressal committee, in the meeting.

e.g;

https://labour.kar.nic.in/labour/trade-unions-list.htm

The Indian Headquarters at Bangalore
Karthik Shekhar – General Secretary, UNITES India
#6/2, 1st Main, Next to Kodava Samaj, Vasanthnagar, Bangalore – 560 052
Phone: + 91 – 80 – 2235 5959 . 4123 5499
Email: contact@unitespro.org / unitesprofessionals@gmail.com

Bangalore
N R Hegde – Regional Director, UNIDOC Karnataka
#6/2, 1st Main, Next to Kodava Samaj, Vasanthnagar, Bangalore – 560 052
Phone: + 91 – 80 – 2235 5959 . 4123 5499
Email: unidocbangalore@gmail.com / nr.hegde@unitespro.org

https://itnitesunion.wordpress.com/

You can also take cues from other union’s that have succeeded in getting notifications from state Govt that IT employees are covered by IT Act, e.g;

New Democratic Labour Front – IT Employees Wing
Contact
combatlayoff@gmail.com 
9003198576

https://www.facebook.com/permalink.php?id=1024521057562053&story_fbid=1335603626453793

FORUM FOR I.T. EMPLOYEES

https://fite.org.in/

You have made it clear that you have written you have resigned due to Nonpayment of earned wages, and it is good.

You have not made it clear how much notice period was tendered by you? Or it was resignation with immediate effect?

You have not made it clear if you (employees) know about assets, whereabouts of employer?

Has the employer made the funds available with third party HR for settlement of dues?

Your posts does not clarify if employer has communicated in writing that it is closing and third party HR is authorized to liaison with you and settle all dues/documents.

You have posted that: “The employer has informed the other laid down employees through an email that they no longer will be employed and there is no update on the closure.”

It could be a notice of termination, that employer can issue (quoting clauses from appointment letter), Termination Simpliciter.

Apparently: NO notice for lay off, closure was issued.

However the actions of employer as posted by you point to closure. 

The employer has issued LWD in your case and had sufficient time to supply the FnF statement and pending dues/wages/payouts and FnF dues and pending documents within close of office hours on LWD, set by employer.

Choose as suitable to you and all others to defend yourt interest and at the same time avoid being rigid and try to close ther matter ASAP.

The above are impressions only with lmited understanding from your posts and you are closest to the facts and need to take your own decision,

As per your last post: It is still not clear, the employer has shifted office or third party HR has shifted office?

The employer is very much operating or not?

If you are covered by the def. of Workman, Employee then you can try with authorities/Forums as already posted or may have to approach Civil Courts.

Rest the seasoned employee's/trade union leaders, your own counsel at Bangalore can guide you further.

Dear Sir, Thank you very much for your time and valuable opinion. 

The employer has shifted his office and is working from a different place but asking us to meet at the old office.

The HR is a third party consultant and they only provide HR services; they are not authorised to make any payment to employees, Only the employer will do.

The employer is not replying to any of our emails neither the HR, Out of the 20 employees who have been laid off no one is going to the office today to return the laptops. I will let you know if we receive any further email from the HR or the employer. 

And the employer has decided my relieving and notice period is waived off, reply from HR ( Kindly complete the exit formalities mentioned below since 17th January shall be considered your last working day in Modasta.).

It is entirely your personal decision to not to go for meeting.

You are closest to the facts and need to apply your own judgment. 

You may relook and try to conclude ASAP.

If employer has more than one office it can call meeting in any office.

The employer can change office/can have more than one office.

In your case you have resigned, notice period is waived off and third party HR has already supplied a communication that: you may submit assets and get Service Certificate/Relieving Letter, by the next day and pending dues within next 45 days.

You seem to have NO evidence to establish that resignation was extracted by force/pressure so as to claim forced Termination and retrenchment. Next your coverage by umbrella of Labor Laws: which is a question of Facts and law. Even a Manger Might be covered. Even a Clerk may not be covered. The nature of duties on record in company can matter to get you Coverage or NO coverage. If you are not covered you may have to approach Civil Courts. If covered you decide to approach other forums as already posted.

Likewise for other employees.

The difference is that they are terminated by written order (Probably Termination Simpliciter) as per appointment letter/contract of employment…………………..and it is not any stigmatic order and lay off/retrenchment is not mentioned.

You may relook and try to conclude ASAP.
 

The employer is likely to take stand that none of you is covered by def. of Workman/Employee and not eligible for retrenchment compensation.

As per your previous posts there is NO written communication on Lay off/closure/retrenchment and apparently you have NO evidence, of closure/lay off. In that case you may have to establish that it was veiled action to avoid payment of severance compensation/Lay Off/retrenchment (if eligible as per applicable service conditions and enactments).

As per your previous posts; employer himself is not traceable/accessible to you and is not communicating to you and is not replying to your communications.

Another pertinent point is that:::  if employer has not closed operations and has shifted to another office and has sufficient money to pay delayed wages and to run operations then its actions could be; downsizing. (Although it has not communicated anything on record as per your post and you have NO evidence. Rather you are hinting that action means lay off/retrenchment).

The employer may still be unwilling to take you and all others back in employment.

So unemployment is staring at all of you.

Probably there is NO communication from employer that this Third party HR is authorized to transact with you (other employees)…………………Or Probably there is…………………….Or this Third party HR is claiming that it is authorized. You have not clarified anything on it.

In any case, there is someone that is communicating.

You could have attended the meeting, raised the pertinent points and kept the chain of communication open and aired your wishes and demands………………including but not limited to calling back termination orders and instead accepting resignations…………….payment of pending dues etc. etc . ………. minuted the discussion and circulated.

The third party HR has already subjected the release of Relieving letter/service certificate, FnF dues………………….. to conditions.

You have posted that you are unwilling to comply with conditions. The conditions could have been discussed and negotiated and modified.

It has already been posted that employer can contemplate complaints for recovery of assets.

You could have involved the unions, labor officials, Grievance Redressal Committee, and your own counsel(s).

Their intervention could have alleviated your apprehensions on payment of pending dues etc etc …………..

Had you approached them you could have been properly informed on your coverage by umbrella of Labor Laws/State Laws and Grievance Redressal Committee etc , and appropriate forum that you can approach (each employee) and thereafter attempt to get matter resolved amicably and thru discussions and interventions!

Unions can render support also.

So before next communication from employer and before next meeting, get everything examined and be properly informed and take an action that is justified and defends your interest.

Close the matter ASAP and do not remain entangled in the matter, for long.

Avoid litigation as much as possible.

Also, ASAP firm up next employment also and do not remain unemployed for long.

Sir appreciate your reply, As I've mentioned earlier the employer has vacated the office and has shifted to a small office; they are operational from yesterday. When I resigned & disclosed the financial reason, the employer agreed to relieve me as there was no idea on the future investments, And later by 31st Jan they individually sent an email to other 19 employees and informed the termination saying the investor has asked them to restructure the organisation. I myself called the HR multiple times to know the final settlement and to deposit the laptop. They replied us on 2nd Feb and asked us to visit the office today. And the latest update is no one from the terminated employees have turned up to deposit laptop and we all are waiting for the HR response. We were asked to work from home from 23rd Dec till 9th Jan (We received an email from the CEO) as there was no power and the other office bills were not cleared. We were again asked to report on 9th Jan and on 9th Jan the employer revealed that they have received emergency funds and our salaries will be paid in a weeks time, It was also informed to our reporting managers that the organisation restructure will happen and we were asked to resign if we have any other opportunity in hand. 

The emails on restructuring to employees and bosses can be of some help to you.

I am unable to understand rest of your post.

Pls explain. Take your time. today or tommorrow. If not today I shall revert  tommorrow evening. 

Show everything to your local counsels.

Explore the option of Greivcance Redressal Committee and Higher Officials in Dept . of Labor and unions.

As per some publications it has helped many.

You have posted that: “we were asked to resign if we have any other opportunity in hand.” 
 

If it is on record and you can establish it then you can claim it as deemed termination and claim notice pay/separation pay/retrenchment compensation as applicable in your case (and other employees) as per applicable enactments/service conditions in each case.
 

“on 9th Jan the employer revealed that they have received emergency funds”

In that case the reason for so called restructuring might be removed and employer may take back all employees or pay their dues.

The FnF dues should be paid on LWD or say within next 3 days or max. by usual pay day.

The third party HR can supply FnF statement and salary slips of all months, including last month.

You and employees can approach unions, Grievance Redressal Committee that has been formed in your state.

You can take union’s support also.

You and other employees can approach:

Inspector appointed under Karnataka Shops & Estbs Act and Inspector can get you certified copy of all relevant forms prescribed under Karnataka Shops & Estbs Rules (that show DOJ/LWD of employee can payables).You can also pursue RTI route thru Inspectorate.

Inspector appointed under; Payment of Wages Act

O/o Labor Commissioner

Higher Officials of Dept. of Labor

Civil Courts