The employers and attorneys of the employers have been devising endless number of ways to safeguard their interest and transfer the onus on employees and block their relieving and payment of dues………..
Employees on the other hand have been throwing their fate into the hands of unscrupulous employers………….
The question arises who is responsible for the plight o employees::::::obviously the employees themselves…..as the employees neither appraise themselves of their rights nor unite to form unions nor affiliate with trade unions nor approach the elders in the family, competent and experienced well wishers, Labor Law Consultants/Service matters lawyers/law firms, employees/trade union leaders before signing on the dotted line……………..blindly and accept whatever is written in the contracts/appointment letters/HR policies etc crafted and drafted by the employers…
Parents should encourage their wards to participate in union activities from their college/school days and be properly informed and able to handle their matters later in the life……..
@ Shriram,
Always initiate a new thread and post your query.
1. Has the company asked you to recover the payments from clients verbally or in writing? Who has asked you for it? Have you submitted any reply?
Is it stated in contract of employment/offer letter/appointment letter/HR policy---service rules and regulations---employee handbook etc mentioned in appointment letter etc that you are responsible for collection of payments and any payment that is not collected and realized can be adjusted in payouts to you?
ON basis of which clause/agreement Company is declining to release your payouts and issue relieving letter……………….till the payments to the company are realized from cheques in custody of the company or court maters?
You may attach such clauses/agreements and show these to your able Labor Law Consultants/Service matters lawyers/law firms, employees/trade union leaders……..and proceed further under their expert advise………………It is imp. To defeat the claim of the employer as employer may claim that it is in line with ‘Terms of Employment ‘ signed by employee……..(you in this case)!!!!
Deductions from earned wages is well stated in many of the enactments applicable to the establishment/employee e.g. Payment of Wages Act, Min. Wages Act, (Name of the state) Shops and Commercial Establishments Act and (Name of the state) Shops and Commercial Establishments Rules…
NO deduction other than statutory deductions like PF,ESIC,TDS etc can be made from wages without explicit consent/agreement of the employee……..
If some employee erred due to which client is not paying then company had the option of not raising any bill/not supplying the stocks/calling back the stocks…..
The bill is raised in the name of customer and customer alone is liable to pay…….employee is not the customer and bill is not raised in the name of employee and is not liable to pay……
The company has to put in enough checks and balances to safeguard its interest…….
The company has supplied against cheque and that ends everything. Even if company supplied without cheque it can do so…………….! Employee is not responsible for any act of the employer and employer has to initiate steps to recover the payment from client in whose name bill is raised.
2. Your counsel may ask you a set of structured questions and opine that although you were a Regional Manager………it was a decorated designation and you shall be covered as per def. of ‘Employee’ as in
( Name of the state) Shops and Commercial Establishments Act {be it Delhi Shops and Commercial Establishments Act i.e location of Redg. Office of the company….in case company claims that all employees are treated as if they were at Delhi, or Bombay Shops and Commercial Establishments Act i.e. Mumbai/Maharashtra where you were located…………and ‘Workman’ as in ID Act……………..or as in Payment of Wages Act….}
You may go thru the Acts at:
https://www.lawzonline.com/bareacts/delhi-shops-and-establishments-act/delhi-shops-and-establishments-act.html
https://mahakamgar.gov.in/MahLabour/images/pdf/the-bombay-shops-establishments-act-1948.pdf
It is felt that in Delhi too like Maharashtra standing orders (Certified/Model) are applicable if no. of employees is 50 or more….
The designation alone does not decide the employee shall be covered or not.
In such case you can agitate at your location and approach Inspector appointed under Bombay Shops and Commercial Establishments Act…….and one of the duties of the Inspector is to ensure FnF dues of the employees are paid on due date i.e. last day in office or say within next 3 days or max. by usual pay day……….
Employee can lodge a complaint the moment the payment of earned wages is delayed by even a day and Employer/establishment can be penalized say Rs.7500/instance……
3. What is the notice period applicable to you and what was the notice period tendered by you? Did the company accept your resignation before the expiry of notice period tendered by you::::: if yes it may offer notice pay for the leftover period @ notice pay as explained in the Act i.e. as per monthly wages drawn in last month/3 months…………………..however it is upto you to accept it or not……………….and you can demand to let you to serve full notice period………………claiming that resignation can not be accepted before expiry of notice period tendered by employee…..and there are many judgments by Supreme Court of India to this effect.
4. Relieving letter signifies that nothing is pending against employee…….
You have separated by notice of resignation and have not caused abrupt termination by tendering resignation with immediate effect……..thus you have displayed character……………..and it was duty and responsibility of the employer to provide everything to you within and up to last day in office…..
Hence you should assert in writing under proper acknowledgment that you have resigned by proper notice of resignation and represented in office to handover the charge/assets of the company under proper acknowledgment on the spot and no tasks were left pending by you………………hence nothing is pending to be done by you, therefore the original FnF statement for verification and acceptance by you, payment of FnF dues by bank DD, service certificate, relieving letter, salary slips of all months, PF a/c number with a/c slips of all years, ESIC card, NOC/NDC, proper acknowledgment of handover of charge/company property should have been supplied to you within and up to last day in office…..
So far company has supplied you only the acceptance of resignation and after the acceptance it is duty of employer to provide everything else too as mentioned above……..
5. Gratuity: Since your resignation has been accepted, the company is liable to supply the notice of determination of Gratuity and payment of Gratuity within 30 days or it shall be liable to tender interest @10%pa…….
You may submit FormI alongwith covering letter under proper acknowledgment, narrating that notice of determination of Gratuity and payment of Gratuity has not been supplied despite representations by you in office………
If company has issued FnF statement/communication even if by email showing payment of Gratuity then it has to supply the payment within 30 days…………@ { (last drawn basic salary+DA)/26*15* No of years in service}…..
Period >6months be counted as 1Y and below as 0Y…
You may draw the attention of all concerned including HR personnel/employer in person to Sec:9 that provides for penalty, punishment with jail time……to “WHOEVER” …..as in the Act….
6. Imprested cash: is provided by the employer to employee to meet the incidental expenses and not by employee to employer………….Then why you have to collect imprested cash…?
If employer is not paying promised amounts then it is breach by employer and your lawyer may opine that you can complaint u/s406,420…..
If you have advanced amounts to employer but employer has not paid then it is debt on employer……
Unpaid wages are also debt on employer and employee can approach the employer as creditors and file winding up petition………
7. Bonus: If employer has agreed to pay bonus then it should pay……
Be it statutory bonus as per payment of Bonus Act or performance bonus….
8. Jurisdictional Courts: The company might have inserted in appointment letter that courts at deli shall have exclusive jurisdiction……………however your lawyer may opine that employee can agitate at his location/location of office of the company/location of Redg. Office of the company……
In the registration Certificate (showing 5 employees instead of 10 that is illegal and wrong and complaint can be lodged…………..) the name of the Manager/representative of employer/employer is mentioned and for all practical purposes this person can be included in the list of notices and summoned……
9. In Maharashtra :
-Trade Unions have traditionally been strong and may agree to represent you……
-MRTU,PULP is to defend the rights and Industrial Tribunals can be approached…..for unfair labor practices….
-Managers are also provided opportunity and employer is given opportunity to resolve under PAMS…personal advisory and managerial servicate…….an informal plateform to resolve before reference to appropriate forum…….
At Delhi and Mumbai you can access Lawyers par excellence and you may proceed under expert advice of your lawyer……
