Payment of salary and dues in the absence of appointment letter
Jatin Shaw
(Querist) 25 March 2017
This query is : Resolved
Respected Experts, I had joined this organisation which is based in New Delhi at their branch in Kolkata in May 2016. They had only given me the offer letter which I duly accepted and had joined but never was provided with an appointment letter and even after requesting many times they did not send the same. The branch was just a godown and all the previous staff had quit but then even I continued and started working. My reporting boss was the CEO of the company based in Delhi. The problem was that the salary credited to us by 20-25 of next month. Which continuously was delayed even after requesting them to pay the salary on time. Later on I got to know this was in practice in the company and even my boss would not listen to me over email, phone or on personal visit and would always reply I will see. Thus not been able to continue with the possibility of delayed salaries I quit in January 2017 on 6 th January. After that I have been requesting them to clear my December month Salary and my travelling and conveyances expenses. But they are avoiding as usual my emails and calls. Please tell me how to recover my dues from them ?
DR.VEDULA GOPINATH
(Expert) 26 March 2017
Mr. Jatin Shaww
Offer letter given by your employer is deemed to be the appointment letter.
The employer is supposed to make payment of salaries as per Payment of Wages act.
You have right to recover the dues. Pease send me appointment letter and resignation letter to guide you further.
cs dr vedula gopinath
advocate/arbitrator
vgnath@gmail.com
Rajendra K Goyal
(Expert) 26 March 2017
Discuss with local lawyer and initiate legal proceedings to claim your dues.
Guest
(Expert) 26 March 2017
Well Advised by Senior Advocate/Expert Dr.Vedula Gopinath.
Kumar Doab
(Expert) 27 March 2017
Agreeing with DR.VEDULA GOPINATH, Mr. Rajendra K Goyal.
If you are covered by the Payment of Wages Act, you can agitate under the provision of the Act.
Kumar Doab
(Expert) 27 March 2017
While posting such queries employee should post basic information!
What is this establishment; Commercial, Industrial?
What is its nature of business say; IT?
How many persons are employed in it?
What is your designation and nature of duties?
How many persons report to you?
Do you have any power to sanction leave/increment/appoint/terminate/appraise etc etc ?
You are in which state (Noted;West Bengal)?
Since how many months you are working?
What is submitted by you: Notice of resignation or resignation with immediate effect?
Do you have copy of it and its acknowledgment by employer, its proof of dispatch and delivery by you?
Did you mention notice period/LWD in it?
Did you mention reason of resignation i.e; Non/delayed payment of wages?
Do you have proof of dispatch and acknowledgment of reimbursements claims submitted by you?
What is the notice period tendered by you and applicable to you as per offer (appointment) letter?
Has employer been issuing salary slips of each month, Form16, PF number PF a/c slips, ESIC card?
Are you member of any employee’s/trade unions?
Do standing orders (model/Certified) apply to your establishment and your designation?
What was your monthly salary and its break up?
Jatin Shaw
(Querist) 30 March 2017
Respected Seniors,
With respect to the above Query posted by Kumar Doab sir. I would like to answer to the same ---
(1) Establishment I was working with is a Commercial one, though they even have a Factory in Roorkee (Uttarakhand).
(2) Nature of Business of the organisation is manufacturing of Aluminium Composite Panel which is used in the outer facade of Buildings as well for interior cladding.
(3) Number of persons employed I am not sure but as much knowledge I have gained about them it should be more than 75 Person including the Factory workers.
(4)My designation was as Sales Manager (East) and my duties was to do Sales and Marketing of the company product in west bengal and odisha.
(5) Only the Kolkata Warehouse incharge was reporting to me and there were two Warehouse Labour man.
(6) No I didn't had any power to sanction, leave, appoint, increment, appraisal, etc. bestowed upon me by the company.
(7) I am based in Kolkata (West Bengal, I am resident here and tour entire West Bengal and Odisha on Company work.
(8) I have been working here since 8 Months only, resigned because of too much delays in receiving salary.
(9) I have submitted resignation with immediate effect, as I was too much peeved with the inefficiency of my CEO and DGM to resolve the continuous delayed salaries.
(10) I had submitted my resignation via Email which has been confirmed by the CEO towards receiving.
(11) I didn't mention notice period in the email.
(12) I have mentioned the reason as delayed payment of salaries.
(13) Sir I never got any appointment letter from the organisation and only the offer letter which even was sent as a pdf format on my personal email address. The letter was even unsigned by any authority. When asked the HR Manager said this is the norms of the company.
(14) The employer has not been issuing any salary certificate to us nor there is any deduction of PF, ESI, Etc. They didn't issue any Form 16 either but they did deduct the TDS, which was submitted by them. I had accessed the same online through my PAN CARD.
(15) I am not a member of any trade union.
Kumar Doab
(Expert) 30 March 2017
You have not posted what is the Notice Period applicable to employee as per said soft copy of said offer letter?
Kumar Doab
(Expert) 30 March 2017
In any case case if you are covered by the enactments that apply to establishment and your designation (per nature of duties as on record also) then these enactments shall prevail upon T&C of any private agreement claimed by employer as having signed /accepted by employee.
If you have mentioned reason of resignation as ‘Non/Delayed Payment’ of wages as a reason for separation then you may claim clauses like Notice Periods has lost its sanctity (Employer is unworthy of being employed with).
Rest relate with language written by you in resignation……………..and check if it can let employer claim resignation with immediate effect.
Kumar Doab
(Expert) 30 March 2017
You have worked for less than 1 year (8months).
The establishment might be covered by The West Bengal Shops and Establishments Act until or unless exempted by the state govt.
{“…………forwarding or commercial agency or a clerical department of a factory or of any industrial or commercial undertaking is covered by the Act.”}
The West Bengal Shops and Establishments Act do not lay down any notice period for employee.
The West Bengal Shops and Establishments Act lay down notice period of 30days for employer (if employee has worked for not less than 1 year) in case of termination on grounds of ‘Reasonable Cause or Misconduct’.
The date of payment of wages is not later than 10th of subsequent month, as per the Act.
Kumar Doab
(Expert) 30 March 2017
The owners must have mentioned the name/designation of the person to be treated as employer/Manager, agent/any person working on behalf of employer, while registering the establishment with state authority.
The reigeration Certificate must have been dislayed in office.
Are you or your designation mentioned as any such entity?
If yes, you may not be covered by the Act.
You may approach the:
Inspector appointed under the Act. You might be covered as ‘Person Employed’, however you must not be deemed with ‘Traveller’ and local counsel can help you.
Inspector appointed under The Payment of wages Act ( if you are covered by the def. of Wages as in the Act. This Act does not discriminate between the Workman and Non Workman).
O/o Labor Commissioner; if you are covered by the def of ‘Workman’ as in ID Act (You might be covered).
Or Civil Courts
You can either agitate on your own as PIP (Party in Person: If you are confident).
The employee’s/trade unions can support you, represent you.
The employee’s Trade Unions have traditionally been strong in West Bengal.
Or you may take help of a local counsel specializing in Labor/service matters.
Visit Labor Court/CGIT, civil courts, HC……….. at your location and find out which counsels appear and which are the best.Your well wishers, colleagues, employee’s/trade unions leaders etc can also guide you to a very able local counsel specializing in Labor/service matters.
DR.VEDULA GOPINATH
(Expert) 30 March 2017
mr jatin shaw
you are having a right to recover the amount from your emplyer.
Please give me your back up documents to me for perual and further guidance.
dr vedula gopinath
advocate/arbitrator
9866013121 vgnath@gmail.com
Kumar Doab
(Expert) 30 March 2017
Senior Expert DR.VEDULA GOPINATH has very kindly offered to help.
You can benefit from his counsel.
