We prompt all employees to BE SMART.
Employment is not marriage and separation is not divorce, hence there are no emotional involvements.
On line discussion have its own limitations. Let your lawyer’s opinion be final on all points discussed in this thread.
You have posted that:
--“ I could have easily resigned after taking the month's salary, but it would have seemed unprofessional.’
It would have been realistic and practical. You should have done it.
After all these are your earned wages and you need these in time.
--“ The funny part of the whole scenario is that another female colleague who had resigned in the initial days of March and has her last working day on 8th of April has got her salary in her account.”
In all probabilities company won’t comment on it/revert on it/accept it. You may try.
The pay day for the FNF dues is the usual pay day.
She has been paid on the usual pay day. Some employees due to their position, proximity to the sensitive information, portfolio etc, succeed on acquiring some handle on the employer and they remain successful with their dealings with company.
Such employees are SMART.
Let us look at it from other perspective.
The guys in the HR/personnel have there orders from their masters “ FNF dues are to be paid on ………….day from day of separation. How does he/she defy such orders until or unless there is a waiver/approval or in other words some handle in the hands of employee to be worthy of such waiver?
This handle can be a clean image and record like in your case so you may apply and try it. Such matters are best resolved by applying rapport, goodwill, and exceptional levels of negotiation, persistence, reasoning, negotiation skills.
If there is process of exit formalities, NOC/NDC, you may obtain these within the office, submit these under acknowledgment and keep copies and acknowledgment.
You may submit list of payables by you to company, payables by company to you and conclude that you do not owe anything to company and there is no point in keeping your dues withheld for 2 months and that you are facing acute financial difficulties.
Do not limit yourself to line management and HR only and escalate to good offices of appointing authority/MD/Chairman/Company Secretary and company can allow payment of say 80% of your dues.
--“ I decided to resign on 26th of March 2013 and suggested to serve a month's notice period.”
Instead of suggesting, you may write clearly the notice period being tendered by you and your effective date of resignation/last day in office.
--“ Please let me know if there is any legal or standard process that gives this right to company. And if there is no such legal or standard policy then how to handle such situation without getting unethical/unprofessional/unlawful.”
The pay day for the FNF dues is the usual pay day.
Companies may state and claim that they have to obtain NOC/NDC from various depts. and may even claim that they have to check the transactions/liabilities /out standings from the market. Employee is not empowered to enter into any personal dealing with vendors and company has to obtain the requisite clearance from various depts. in time.
Moreover you have not caused abrupt termination and you have tendered one month of notice period which is sufficient time for the employer to put his house in order and do whatever checking it wants to do and hence it should pay your wages of last month on usual pay day and it should also pay wages of month in which you are on notice of resignation, on the usual pay day.
--- In addition to the Industrial Disputes Act, 1947, several states also provide for compliances under the Shops & Establishment Acts, Standing Orders Act, Payment of wages act……. If the employee falls within the definition which has been provided under these enactments, then the employee would be protected up to that extent.
Any policy in the larger interest and beneficial to both employer and the employee has the sanction of law as otherwise it will be easily termed as arbitrary.
Designation alone does not decide employee is a workman or not. Your lawyer may ask you a set of structured questions and may opine that you fall within the category of workman. Labor laws applicable to workman limit the choice to employer
As per IESO Act/Model Standing Orders the dues to the employee/service certificate should be handed over by the close of office hours on the last day in office……..
>Model Standing Orders;
11. Payment of wages, 13. Termination of employment, 16. Certificate on termination of service
> Refer to Shops and Establishments Act as applicable to your state. It does not indiscriminate between workman/non workman and is applicable to all employees.
e.g: The Delhi Shops and Establishments Act,
2. DEFINITIONS.
(7) “employee” means a person wholly or principally employed, whether directly or otherwise, and whether for wages (payable on permanent, periodical, contract, piece-rate or commission basis) or other consideration, about the business of an establishment and includes an apprentice…………
19. TIME AND CONDITIONS OF PAYMENT OF WAGES.
(3) The wages of every employee in any shop or establishment shall be paid on a working
day before the expiry of the seventh day of the last day of the wage period in respect of which the wages are payable.
(5) Where the employment of any person is terminated by or on behalf of the employer, the wages earned by him shall be paid before the expiry of the second working day after the day on which his employment is terminated.
21. CLAIMS RELATING TO WAGES
30. Notice of Dismissal.
COMMENTS
(a) Applicability of section 30
The protection of the provisions of the section is available to all persons who fall within the definition of the term “employee” as given in section 2(7) of the Act and who have put in three months’ continuous services. In the absence of any standing orders or any contract between the employer and the contesting respondent containing any particular terms or conditions, the conditions of service of the employee relating to his employment in an establishment at Delhi are covered by section 30(1) of Delhi Shops and stablishments Act, 1954
37. POWERS AND DUTIES OF INSPECTOR.
COMMENTS
(b) Duties of the Inspector:
(h) that the wages and other dues are being paid to employees in time as required under
the Act;
(i) that in dispensing with the services of an employee the provision of the Act and Rules
have been complied with and no dues payable under the Act or Rules have been withheld;
> THE PAYMENT OF WAGES ACT, 1936 (applicable to all employees with wage ceiling up to Rs.18000/pm):
2. Definitions.
3*[(vi) "wages" means……
(d) any sum which by reason of the termination of employment of the person employed
is payable under any law, contract or instrument which provides for the payment of such sum, whether with or without deductions, but does not provide for the time within which the payment is to be made;
Valuable advice of learned experts/members is sought.
