joy malakar 02 July 2015

Notice pay on gross and pl on basic

Dear Sirs/ Madams,

I was working for a manufacturing company headquartered in Hyderabad having more than 500 employees.

I was posted in Kolkata as senior executive.

I had a notice period of 3 months and served 35 day after notice.

And I had 31 Paid leaves with me.

Now for the final settlement they are saying that they will consider the basic amount for the paid leaves and will recover the shortfall in notice period on gross. Which I fell is very unfair as my basic is only one third of the gross.

There are only 3 points mentioned in my appointment letter regarding resignation which are

"12.When an employee submits his resignation to the company, the company will have the option to accept either with immediate effect and pay salary in lieu of notice period or accept it effective any date during the notice period and pay salary for the period remaining between the date of relieving and the end of notice period.

13.when an employee submits his resignation to the company and requests the management for an early revealing from the service of the company, the company shall have the option of to reject or accept the request effective any date. the company shall however continue to be entitled to recover shortfall of total notice period from the employee.

14. After submission of resignation , the employee is required to serve the entire notice period ,he cannot avail leave during the notice period. Privilege leave balance, if any,will be encased along with the final settlement of accounts. The management at its sole discretion may accept the employees request to adjust privilege leave against shortfall in notice."

Can a company force something in name of some internal policies about which the employee was never informed ?

What is the action I can take on my part?

and how strong is my position in this particular case?

Please help.

Regards

Joy Malakar

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1 Replies

Kumar Doab (FIN) 02 July 2015

Saying and telling are verbal modes of communication and are not on record.

Don’t resort to verbal transactions and don’t trust these. Record (audio/visual/witnessed/minuted) each transaction.

The private and internal policies of employer are not law of the land and can easily be termed VOID in case of non compliance and employer can be penalized for violation.

The employer/establishment is inferior/subordinate/servant to the law of the land and rights of citizens of Republic of India.

You are entitled to get acknowledgment of notice/final resignation, acceptance, service certificate, relieving letter, correct FnF statement showing salary/no. of days of worked/earned wages/bonus/leave encashment/adjustment of notice pay/reimbursements/OT etc for verification and acceptance by you, Form16 as per correct FnF statement, NOC/NDC etc………………..

Demand all of these and do not accept FnF till you receive explanation in writing.

First of all determine the office/Division where you were posted/designated/located is covered by which enactment or registered under which enactment or registered as: Commercial, Industrial and accordingly as (Name of the state) Shops and Commercial Establishments Act or Factory Act…….

Once you have determined which enactment shall apply then you may determine whether you are covered by the def. of ‘Employee’ as in (Name of the state) Shops and Commercial Establishments Act (this Act of almost all states does not discriminate between ‘Workman’ and ‘Non Workman’ and covers all employees) or Factory Act……………………….

Your counsels in Employee’s/Trade Unions e.g. CITU/INTUC/AITUC etc, Labor Law Consultant/Service Matters Lawyer/Law firm can help you to determine. Your counsels may opine that you are also covered as ‘Workman’ as in ID Act despite your designation and nature of duties/KRA’s.

Unions in West Bengal have traditionally been strong and can help and support you.

If you have not been member of Employee's Unions/Trade Unions, IC,GRC,Works Commitee then it is your lapse and deficiency.

Once you have determined which enactment shall apply and you are covered as ‘Employee’ and also ‘Workman’ you may look into the enactment for notice period and rate of notice period and rate of encashment of leave.

These can not be inferior to the provisions of the enactment applicable to the establishment/employer/employee.

Generically speaking it is as per last drawn monthly wages.

The establishment can frame its own leave policy as per negotiated settlement with employees/unions, standing orders offering superior benefits but can not offer inferior benefits.

If standing orders are applicable to establishment but are not certified then Model Standing Orders shall apply. Standing Orders are certified on the lines of Model Standing Orders.

Your counsel may opine that notice period of 90 days may not necessarily be applicable to you……………………..and may not be more than 30 days as per (Name of the state) Shops and Commercial Establishments Act, Model Standing Orders.

You may raise your queries