Employer relieved me in back date, and keeping month salary
Neeraj
(Querist) 15 April 2014
This query is : Resolved
Hello Experts,
As per term & conditions mention in my appointment letter. "Either of the party can terminate employment by giving 2 month advance notice"
I tendered my resignation on 1 Feb 2014 and clearly stated that i would serve the full notice period until 31 March 2014.
Employer accepted my resignation on 28th Feb 2014 and mention my relieving Date as 15-April-2014. which is 15 day after my notice period over.
Then on 18th March 2014 they sent a mail stating that we have relieved you on 28th Feb 2014 and sent another Resignation acceptance on 26th March 2014 stating that have been relived from service on 28th Feb 2014 itself.
In this way i could not be released from service of my employer until 26 March 2014 end of the day as i did not have any clear Resignation acceptance with me.
Employer is aslo not ready to pay for 26 Days of March .. saying that we have relieved you on 28th Feb 2014.
Please suggest what can be done in this regards; Can employer relieve a resource in back date and keep his salary.
Thanks in advance,
Regards
Neeraj
Neeraj
(Querist) 15 April 2014
Hello DevaJyoti Sir,
Could you please point me to the related response.
Regards
Neeraj
Kumar Doab
(Expert) 16 April 2014
If you have tendered notice of resignation then you will choose the relieving date, not the HR or employer.
If you have mentioned notice period/last day in office in notice then it can not be preponed or postponed!
If company has accepted resignation before expiry of notice period then it on its own should offer its pledge to tender notice pay for shortfall in notice period!
The employer can only make a humble request to stay for say 15 days after expiry of notice period and pledge to pay wages! Employee can accept or decline!
If you have been relieved in writing without being asked for NOC/NDC from various divisions, handover of charge then it implies this is not deemed as required by employer or attorney of employer e.g. HR personnel....................
From your side you may write that you have represented in office on dated...............To Mr/Ms.............that would want to serve full notice period and earn full wages.
{ Your company may come out with tantrums that notice pay @ Basic+DA for shortfall in notice period shall be paid by it}
IN any case you deserve full wages @ as drawn I last month up to 26th Mar,2014.
If the company states in writing that it won’t allow serving full notice period the let it do so!
If it resorts to verbal communications record (audio/visual) and submit minutes then and there!
Once company has states so (verbal/written) make a formality of writing ‘To Whom if required by employer you should handover the charge within and up to fix a dead line………………………’
Has the company already inducted your replacement? If yes this may be the self centered, selfish reason for its unprofessional conduct.
The acceptance of resignation before expiry of notice period may be claimed deemed termination.
The FNF wages should be paid on last day in office, within next 3 days or max. by usual pay day.
Address all communications to god offices of appointing authority,MD,Chairman……………………..and avoid remaining stuck up with HR, Line Managers………………..
There are many threads that you may find relevant e.g;
http://www.lawyersclubindia.com/forum/Resignation-without-serving-notice-period-94178.asp#.U06PoUeBmXV
Guest
(Expert) 17 April 2014
Contradictory orders of the employer can be challenged in the court of law, provided you have proof on any of the company record about having attended your duty beyond 28th February.
Kumar Doab
(Expert) 17 April 2014
From 1st Feb till 26th March did the company stop you from marking entry/exit in register at reception/gate, attendance on line/off line , entering office premises, approaching your workstation/seat, doing your work etc………..?
Did you get verbal/written orders to remain at home till further orders? Some employers are known to restrict the employee that has tendered notice of resignation to HQ/home without need of attending office…………………………and in such cases too salary is paid……………………………
Who has conveyed unwillingness to pay salary up to 26 Mar, employer himself or some one else!
Have you so far responded in writing? You must. However remain gentle and amiable. Collect evidence that would be in your favor.
Submit the details and your claim to appointing authority, MD…………………….of course under proper acknowledgment and request them to ensure that Mr/Ms………………………..do not resort to such practices, and correct FNF statement is supplied to you
It shall be appropriate to consult in person a labor consultant/service lawyer with all docs on record and proceed under expert advice of your lawyer.
Consult a labor consultant/service lawyer now! Let your representations be drafted preferably by your lawyer so as to build record and situation in your favor.
Kumar Doab
(Expert) 17 April 2014
You have tendered notice of resignation.Company has accepted it before expiry of notice period.
It has to tender notice pay.
Forget about words like 'Resource' etc and do not bother.Employee is employee whatever be the term applied by employer.
You are to get service certificate, relieving letter, FNF statement and any other document showing tenure of service/DOL as 26th March,2014.
T. Kalaiselvan, Advocate
(Expert) 17 April 2014
Yes, as rightly opined by expert Mr. Kumar Doab, your company/employer is obliged to pay your salary upto the date they informed you about their decision, i.e., 26.03.2014, they cannot deny your salary for all those 26 days in which you were in employer's roll. The next option is to serve them with a legal notice demanding your entire rights including the proper relieving letter, F&F and other terminal benefits, including the salary for period under consideration, after which decide about resorting to further legal action.
Neeraj
(Querist) 17 April 2014
Thanks a lot all of you experts for your kind replies. Let me give little more back ground.
My employer is Hydrabad based out sourcing company, They hired me as their permanent employee and deployed me in Bangalore based MNC for specific project need. so i joined directly to bangalore and remain there till the end.
I tendered my Resignation on 1 Feb 2014 and agreed to serve full 2 month notice period . I also called my Director& notified that I am scheduled to get released from Project on 28th Feb 2014 upon successful completion of project. I also tried to verify from whether you (Employer) have any plan for my employment during March 2014. He told me that he'll get extension . But he could not get the extension for me as project was already over.
As schedule i was released from project on 28th Feb 2014 and handed over my access card/Laptop/Car pass. so i did not have any access to client premises from 1 March onwards.
When my employer realized that he will not be paid through MNC on 18th March . i received a mail from Business Development Head that Since you have been relieved on 28th Feb by MNC so we are also relieving you from 28th Feb 2014. And they sent a Resignation acceptance Mail on 26th of March 2014 and mentioned my relieving date as 28 Feb 2014 which is back date.
During the Month of march i tried to contact them hundreds of times over their cell/phone but neither Director not HR accepted my calls. They stopped picking my calls . which is really frustrating.
Please suggest what will be the jurisdiction of law suit.
Bangalore Where i was deployed or Employer Head office Hyderabad. (Juridiction is not mentioned in Appointment letter or any of the doc i signed.).
How long this case will take, and approx. expense
I want to issue a notice for recovery of last month salary/paid leave/Legal Expense/Hard copy of Experience certificate/Form 16.
Please suggest.
Regards
Neeraj
Kumar Doab
(Expert) 18 April 2014
You have tendered notice of resignation with notice period of 2 months in line with T&C inserted in appointment letter drafted by employer. Employer is bound to comply with service conditions inserted by him in appointment letter drafted by him. Notice pay inserted in appointment letter should become part of wages payable to you.
Employer has accepted it before expiry of notice period. Employer is under obligation of paying the notice pay of two months.
In your case employer has:
-- accepted it from back date. It is in your favor.
--stated inI writing that it shall be accepted w.e.f. 15 days after expiry of notice period implying
Employer had decided to keep you in employment till that date. It is your favor. Logically employer without showing any tantrums should pay you wages up to this date. Otherwise you are certainly entitled for notice pay of 2 months.
You have been:
--asking to let you know after being relieved from client location where you were deputed by employer that employed you, where should you report. It is in your favor. You should have submitted minutes of each representation made by you to employer by phone, email, in person, by letter, fax etc ………………….mentioning phone number (from which call as made, at which call was made) dates, time, names, designation, brief minutes of discussion……………………………..and include the dates, time, phone numbers, names etc for calls that were not answered…………………………..
--otherwise also relieved from employment in back date that is bad conduct, unfair, unprofessional, unlawful too……………….with apparently clear motive of depriving you from the legitimate payouts/wages and compensation that you deserve……………………………..and has harassed you.
--writing to employer and employer has maintained studied silence. You have escalated to Director and probably director is employer/owner and the conduct of Director is unbecoming of Director and good offices of Directors. This gives an indication that Director is a party to the suspected fraud……………….
You may show these communications to your lawyer and let your lawyer now structure and draft your future representations and cover loopholes if any left by you!
You should refer to the communication by you (even if verbal) during which you affirmed to serve ful notice period and earn full wages in notice period, last date of working to be recorded as 26th Marc as you have worked till date, tender notice pay from 27 Mar to expiry of notice period, salary slips/PF number/PF account slips of all months of service, ESIC card, Correct FNF statement showing Bonus/leave encashment/wages and notice pay computed/reimbursement .etc etc……………., FNF wages by bank DD only, Form 16 as per correct FNF statement, NOC/NDC, service certificate, relieving letter (with good comments Avoid without comments and of course with adverse comments), ……………………………………….to be supplied to you by Redg. Post only so as to reach you in say…………………………days.
You have worked up to 26th March hence DOL to be stated in FNF statement, service certificate, relieving letter, internal records of the company be it Service Card, personnel file, Forms and Formats prescribed under (Name of the state) Shops and Commercial Establishments Act of the state can’t be anything other than 26th March .Falsification of record is offence.
It doesn’t matter whether it is outsourcing company or anything else.
If you have been employed the relationship is ‘Employer-Employee’ and it is governed by law of the land and provisions of enactments applicable to the establishment and employer.
There might be a question of notice pay is at what rate………………………….you may claim @ of last drawn wages including everything.
You were deputed by your employer at Bangalore in an office chosen by employer i.e. Bangalore in your case.
It is your prerogative to approach any forum of your choice at Bangalore or Hyderabad. Your lawyer may opine that you can agitate at any location where company has an office.
How many employees are employed in this company including all offices?
What is this outsourcing company: IT/ITeS, HR consultancy, etc?
What was nature of your duties?
Your labor consultant/service lawyer may opine that you shall be covered as ‘Workman’ as in ID Act, ‘Employee’ as Shops and Commercial Establishments Act, and if standing orders are applicable and extended to your designation then employer is personally held liable for faithful observance of standing orders and FNF wages should be paid on last day in office along with service certificate, within next 3 days, or max. by usual pay day (7th of next month or 7th day from wage cycle as defined in (Name of the state) Shops and Commercial Establishments Act, Payment of Wages act, standing orders etc).
If standing orders are applicable but are not certified then Model Standing Orders shall apply. You may go thru Sec:11,12,15, 16, 17, 18…………………
The establishment should be covered by:
--- Andhra Pradesh Shops and Commercial Establishments Act In AP,
Sec;2 (5,8,9,23), 15 to 19, 30,31,32,34,35to 38,
47 { in particular (1) Provided that every termination shall be made by the employer in writing and a copy of such termination order shall be furnished to the Inspector having jurisdiction over the area within three days of such termination.}
50,54………………….
And Rules framed under Andhra Pradesh Shops and Commercial Establishments Act
---Karnataka Shops and Commercial Establishments Act in Karnataka. It is one of the duties of the Inspector appointed under this Act to ensure that FNF wages are paid to employee…………..
Sec: 2(e,g,h,w,……..),3,7,8,9,11,14,15,18, 21,22,27, 28,29,34,39,
And Rules framed under Karnataka Shops and Commercial Establishments Act
You can also approach Inspector appointed under Payment of Wages act……………..
The labor Inspector in local o/o Labor Commissioner may also be functioning as Inspector under enactments mentioned above. However you may lodge complaint under each Act separately and open many fronts for the employer. The Local layer can advise you whether employer can be represented by a lawyer or not as per latest status in the state chosen by you, or the Employer himself or someone from HR shall have to appear.
All of these enactments should be available at the website of Dept. of Labor of the state, other sites that can be accessed thru internet, or you can buy from market. Your lawyer would be having all of these.
If employer defaulted on payment of wages it must have defaulted on PF,ESIC,TDS etc………..
Employee can approach:
----Employees Unions, It/ITeS employees unions e.g:
http://www.itecentre.co.in/
www.unitespro.org
http://www.wbitsa.org/
www.itpfindia.org
http://itnitesunion.wordpress.com/author/itnitesunion/
Shiv Mahiti Ani Tantradyan Sena(Shiv IT SENA)
mankar.janardan@gmail.com
________________________________________
http://www.shivsena.org
--- Trade Unions e.g; CITU, AITUC, INTUC ............................
Trade unions have embraced employees for IT/ITeS
sector too!
The trade unions leaders shall confirm that “Works Committees’ are an authority under ID Act………{ The Industrial Disputes Act, 1947: CHAPTER II: AUTHORITIES UNDER THIS ACT
3. Works Committee}
--- 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 apply 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;
http://www.lawyersclubindia.com/forum/details.asp?mod_id=72011&offset=1#.UvYBGEeBmXV
Your lawyer may advise to file winding up petition.
Before you act further It shall be appropriate to show the job advt, job application, interview call letter, offer letter, selection letter, appointment letter, deputation letter deputing you at client location, 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 mentioned in appointment letter, 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.
