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balaji (Development Head)     18 March 2014

My employment is not cleared my dues after resignation

I Balaji Pachiyappan Mani from Bangalore.  My complaint is against my employer Mr. Suresh Rao & Mr. Suresh Jain proprietor of Software Support & Management Services Pvt ltd for non- payment of salary and creating mental harassment.  I have given my resignation vide letter dated 18/Dec/2013 from the post Designation of Project Lead (role as Development Head) on the ground of mental harassment created by them and his management and at same time delay for the non-payment of salary for almost 2 and half month(November, December until 18 Jan 2014).  Though after giving resignation and visiting him personally at meeting twice on different dates, he assures me that he would clear my dues as and when the fund will be available.  It has been come to my notice that he had already paid salary of remaining staff till the month of Feb 2014 and with holding my salary.  On third and fourth time send mail to the office along with my queries on my dues, they totally refused to disburse my salary for the month of November, December 2013, Until Jan 18th 2014.,  based on the fact that appointment letter contain a clause that I were suppose to give my formal notice of resignation before a month or salary in lieu thereof.  I have put the following point below for defending myself, are they valid!

 

The point which was put against for non-disbursement of last year November, December, until jan 18 2014 as per my notice period (but they are telling me has terminated my service.  I tell you No I haven’t received any termination mail or escalation mail) is totally baseless based on the first fact that my resignation was based on mental harassment created by them and his management and no doubt delay in the reimbursement of salary for almost two and half month.  We can check my official bank statement to prove myself.  The second fact is that prior to several years there was no system in his company to issue salary on time and paying income tax and professional tax to tax department from employees salary at all.  that totally reveal his Negligence of duty. 

 

 

The Third fact is that the appointment letter were not issued at the time of appointment rather it was issued after 1 month after my appointment, which totally reveals his intension to curb the salary of the employee based on the clause in appointment letter as many employee were leaving the company because of two reason -mental harassment and non-payment of salary.  The fourth fact is that the Relieving letter is totally invalid, because the date of relieving mention Dec 26th 2013, but I have served notice period until 18th jan 2014.   His past record with regard to employee turnover totally reveals his callous behavior and intension of curbing salary of employee.    The fifth fact is that they making all issues to every existed and current employees so that lot of employees resigned from the organization.  

Kindly please do arrangement for claim compensation for such harassment, along with my outstanding salary  for 2 and half month.  As per software company policies employees eligible to work 9:30 a.m to 6:30 p.m. only   but they made me work for overtime and Saturday, Sunday.  Please ask them to claim overtime for that please. 

 

 

Kindly please arrange my dues and other claims what I mentioned in above.   I have enough evidence to prove...  

is there any chances for file a complaint in police station by Under IPC Section 406...

 

Please guide me..

 

Thanks,



Learning

 8 Replies

Advocate Rohit (Advocate)     18 March 2014

you may approach to the police for cheating u/sec. 420 of IPC against your employers for non-payment of salary which is a statutory liability of the employer.

You may serve legal notice to them through an Advocate and thereafter initiate appropriate legal proceedings against them for recovering your dues.

 

Regards

Advocate Rohit Dalmia

9324538481

Mumbai

shrikant (LAW OFFICER)     18 March 2014

You may serve a legal notice for the recovery of salary amount & after that you may file suit for recovery of balance salary amount before Hon'ble civil Judge junior Divission secondly you can make griviance before PF commissioner for recovery of PF amount

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     18 March 2014

Mr. Srikant is rightly advised

Kumar Doab (FIN)     19 March 2014

>>> If you have communicated to retire by tendering notice of resignation the employer can not accept resignation before the expiry of notice period.

 

>>>If the employer has allowed working for him after submission of notice of resignation then employer has to pay wages till last day in office that you have mentioned as 18 Jan2014.

You should have record to prove attendance in office up to this date.

If employer claim employment was terminated then it has to issue and supply termination order.

If your employment was confirmed then it should have issued notice of termination before effecting termination.

 

>>> If you have record to establish OT then without any delay lay acclaim and submit OT claim.

 

>>> If appointment letter was backdated but employee has received it in current date that should help.

Appointment letter should be supplied before joining of duties.

>>> The employee can lodge a compliant the moment payment of earned wages is delayed even by a day and employer can be penalized/punished…………………………………..The penalty may be Rs.7500/instance.

Employee is rightfully entitled for interest on delayed payments.                     

 

>>> If employer has been harassing and exploiting the employees then all employees may unite hands  and lodge  complaint against employer with IT/ITeS Employees unions(s), Trade Unions, Lawful authorities and if required court of law.

 

>>> IT/ITeS companies are covered by Shops and Commercial establishments Act, Standing Orders………….

Model Standing Orders:

13.                                                                Termination of employment: .--(1) For terminating employment of a permanent workmen, notice in writing shall be given either by the employer or the workmen - one month’s notice in the case of monthly-rated workmen 

 

>>> If employer defaults on payment of wages it may default on PF,ESIC,TDS etc………..

Employee can approach:


----Employees Unions, It/ITeS employees unions e.g:

 https://www.itecentre.co.in/


www.unitespro.org


https://www.wbitsa.org/


www.itpfindia.org

 

 

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


Shiv Mahiti Ani Tantradyan Sena(Shiv IT SENA)
mankar.janardan@gmail.com

________________________________________
https://www.shivsena.org






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

--- Inspector under  Karnataka Shops and Commercial Establishments Act:

Sec:6A: Issue of Appointment Orders,

7: Daily and Weekly Hours

8: Extra Wages for Overtime Work

18: Mode of Recovery of Unpaid Wages

21: Application of Payment of Wages Act

34: Maintenance of Registers and Records

39: Notice of Dismissal

  
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. 
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.

The employee should approach within 1 year or has to get the delay condoned.

 

Employer has to issue wage slip to all employees.

 


--- O/o Labor Commissioner


----RPFC thru nearest PF office ;The declinature to attest the PF forms is cognizable offence. The designated HR personnel and employer can be in trouble. Employer has to submit attested PF forms to corresponding pF office in 5 days and supply the acknowledgment issued (for employee) to employee by effective modes of communication.

It is almost certain that employer shall claim that employee is absconding and is not terminated hence PF forms can’t be attested.

Therefore it is necessary that you record calls.

 

----ESTC Inspector in jurisdictional ESTC office

 

 

--- ITO; TDS where you file your ITR


CIT-TDS (jurisdictional) where company files ITR

There are provisions for penalty/punishment for non issuance of Form16 by the deducator…………..

----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



Before you act further It shall be appropriate to show the job advt, job application, interview call letter, offer letter, selection letter, appointment letter, CTC sheet, Salary Structure, Salary slips, STANDING ORDERS APPLICABLE TO THE ESTABLISHMENT (CERTIFIED/MODEL) AND EXTENDED TO YOUR DESIGNATION, HR policy, Service rules and regulations, Conduct and discipline rules, resignation letter/termination notice, etc …………. Communications exchanged with company to a competent and experienced Labor consultant/service lawyer at your location, give inputs in person and 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/forum/Termination-clause-in-appointment-letter-99313.asp#.UylRB0eBmXU

 

https://www.lawyersclubindia.com/forum/Winding-up-petition-by-ex-employees-99326.asp#.UylRBUeBmXU

 

 


Attached File : 155438306 model standing orders industrial employment standing orders rules.pdf, 155438306 karnataka%20shops%20and%20commercial%20establishment%20act.pdf, 155438306 37 of 1975 (e).pdf downloaded: 402 times

balaji (Development Head)     08 April 2014

thanks experts...

balaji (Development Head)     15 April 2014

one of advocate says if i go to serve legal notice or any other complaint to police or labour commissioner, they will not pay if you put case also they will not response better we'll wait give them some time like that the advocate says...  if i put case how time would take to recovery my salary payment.   I have all the evidence to prove my side.  

please advise me which way is really suitable to recover my dues. 

Kumar Doab (FIN)     15 April 2014

Hope you have taken opinion from a Labor Law consultant/Service lawyer. This is altogether different filed and in each city there are few lawyers that specialize in it and practice only in it. They are well known and usually such matters are referred to them. The lawyer at your location can tell you your case shall be in which labor court (State or central) and time it may take. It is your call to wait and wait for as long as you want.

The reference of trade unions and IT/ITeS employees unions has also been mentioned. There might eb other unions too. You may find more. You need to meet them and discuss with them. The trade unions are helping IT/ITeS employees and IT/ITeS employee’s unions .They can guide you. Usually they provide strong support to employees and know how to handle and resolve such matters and in a fast manner. Have you approached them?

The reference of labor officials has been provided to you. They can guide you how much time it shall take for a complaint to decide under Payment of Wages Act, and Karnataka Shops and Commercial Establishments Act. The Labor Inspector in local o/o Labor commissioner may also be functioning as  Inspector under Payment of Wages Act, and Inspector under Karnataka Shops and Commercial Establishments Act also. The Inspector can guide you how much time it may take. There is a provision of Recovery of Wages in these Acts and therefore if employer doesn’t pay the assets can be attached. NO employer would want it. Have you approached them?

If you are not covered as ‘Workman’ as in ID Act, “Employee’ as in Karnataka Shops and Commercial Establishments Act then limitation period for you may be3 years.

Has your lawyer confirmed whether you would be confirmed or not?

The matter has been discussed in length.

Now it is up to you.

You may proceed as suitable to you.

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The company can not deduct anything from wages other than amounts those are statutory deductions as well explained in Payment of wages Act, Shops and Commercial Establishments Act…………..

For any other deduction company has to have a private lawful agreement with employee!

Record all calls of blackmail (audio/visual) citing relieving letter!

 

If employer defaults on payment of wages it may default on PF,ESIC,TDS etc………..

Employee can approach:


----Employees Unions, It/ITeS employees unions e.g:

 https://www.itecentre.co.in/


www.unitespro.org


https://www.wbitsa.org/


www.itpfindia.org

 

 

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


Shiv Mahiti Ani Tantradyan Sena(Shiv IT SENA)
mankar.janardan@gmail.com

________________________________________
https://www.shivsena.org






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

--- Inspector under  Karnataka Shops and Commercial Establishments Act:

--- 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. 
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.

The employee should approach within 1 year or has to get the delay condoned.


 

Employer has to issue wage slip to all employees.

 


--- O/o Labor Commissioner


----RPFC thru nearest PF office ;

----ESTC Inspector in jurisdictional ESTC office


 

 

--- ITO; TDS where you file your ITR


CIT-TDS (jurisdictional) where company files ITR

There are provisions for penalty/punishment for non issuance of Form16 by the deducator…………..

----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




Before you act further It shall be appropriate to show the job advt, job application, interview call letter, offer letter, selection letter, appointment letter, CTC sheet, Salary Structure, Salary slips, STANDING ORDERS APPLICABLE TO THE ESTABLISHMENT (CERTIFIED/MODEL) AND EXTENDED TO YOUR DESIGNATION, HR policy, Service rules and regulations, Conduct and discipline rules, resignation letter/termination notice, etc …………. Communications exchanged with company to a competent and experienced Labor consultant/service lawyer at your location, give inputs in person and proceed under the expert advice of your lawyer.

 


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