How to recover salary, service amount & other outstanding from ex-employer?
KRaj
(Querist) 17 March 2014
This query is : Resolved
I have worked in a software firm which is a Private Limited Company for 27 long years. Since last many years I was getting part salary only. Since Nov.'13 I have left the company and serving in another firm. My total outstanding is Aprox. 22Lacs. (Salary O/S. Rs.6Lacs, Service Amt. Rs.8Lacs, PF Adj. Amt. Rs.5Lacs and Overdue charges committed by company Rs.4 Lacs). The company has no assets or resources except 2 products' software source code which is hard to sell. There is a house in the director's wife name who is also a director in this company. But there is a I.Tax attachment notice on the house from some other matter.
There is one more partner (50% stakeholder) of this company is a owner of another company which is running successfully. This partner has personal assets too. But he become partner in between i.e. 4 years back.
Now I am communicating with both of them but I am not getting any commitment or assurance from anybody. I am helpless and my whole life's savings are hanging in the employer's mercy. Except this money matter my relationship with my employer is very good and cordial.
I have my daughter's marriage and son's higher education ahead (in 3 months time) and have no savings with me.
Can anyone suggest me the correct legal advice. Is it possible to get legal remedy for my problem. If possible how to recover money. Is there a law which attaches the personal assets of the director to pay employee's salary & service amt. outstanding. How long it will take to complete the case. In PF, the company has deducted but didn't deposited the amount for last year and given assurance that it will pay back as per PF calculation with other benefits when I leave. How to handle this problem. In which court these cases will fall? Is it possible to approach consumer forum or other authority which does remedial action speedily. Please advise me. Thanks.
ajay sethi
(Expert) 17 March 2014
as fr as PF dues of 5 lakhs are concerned complain to regional provident fund commissioner that although PF has been deducted it has not been deposited by the company . if Regional provident fund commissioner does not take any action move consumer forum against the company and regional provident fund commissioner for deficency in service .
you can also issue winding up notice against the company and file winding up petition for recovery of your dues .
Kumar Doab
(Expert) 17 March 2014
If the establishment employed 10 persons at a point of time then you might be eligible for payment of Gratuity as well. There is no wage ceiling on Gratuity.
You may submit a representation to the good offices of Appointing Authority, MD, Chairman with a copy to Head-HR, local HR, Local BM and mention that the Notice of Determination of Gratuity has not been supplied to you, despite representations ( if any by phone, emails, in person, by letter etc and provide dates, time, phone numbers, Names of company officials, brief minutes of discussion etc) and FormI is attached, and demand acknowledgment and payment of Gratuity by Bank DD thru Redg. Post only. You may send the representation by redg. Post ( and obtain POD and certified copy of run sheet of postman from PO) and mention that a postage prepaid, self addressed envelope for sending the Redg. Post to you is attached.
The employer has to supply Notice of Determination of Gratuity and pay within 30 days of becoming eligible, even if NO application by employee is made.
(Basic+DA)/26*15* No. of years of service
Basic+DA is as per last drawn wages, so obtain last salary slip.
If in last year you have worked for more than 6months count it as 1Year.
In case of delay you are entitled for interest @10%pa.
If the good offices also do not provide any relief you may approach Controlling Authority of Gratuity.
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:
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 ............................
--- Inspector under (Name of your state) Shops and Commercial Establishments Act, If it is commercial establishment.
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.
--- 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
----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
The stacking order of payment in case of liquidation of company has been made clear by the Supreme Court of India and giving rest to speculations……………….
You may go thru:
http://www.lawyersclubindia.com/forum/Company-in-liquidation-77247.asp#.UbRtnOeAqWN
Labour & Service Law > Others > Company in liquidation
It is imperative to submit carefully structured representations demanding unpaid wages, salary slips and all other pending payouts and documents.
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, Gratuity Rules of the establishment if any, etc…………….. Communications exchanged 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.
Your lawyer may ask you a set of structured questions and can opine that you would be covered as 'Workman' as in ID Act and as 'Employee' as in Shops and Commercial Establishments Act, or not.
Your lawyer may opine that if you are not covered the limitation period in your case may be 3 years.
You may not give a very long rope to this employer.
You may also check if the Director's have limited liability.................
KRaj
(Querist) 17 March 2014
Thank you very much for your good advise. The mention of Service in my above total amount is about Gratuity. I will take necessary steps as advised by the experts.
I want to convey that my director himself telling me to sell of the software source code or asking me to go for legal litigation. He is trying to raise funds but his partner is delaying this process in one or other context. So, I want to know one more thing i.e. whether is there any law which can attach the personal assets of the director or other companies assets of the director to repay my overdue. Otherwise none of the partners are interested to run the business anymore. I continued with the understanding that it will recover soon but it never happened. Now I am in trouble. Pl. clarify this.
Nadeem Qureshi
(Expert) 18 March 2014
Dear Querist
simply first of all send a legal notice to them and if they are not ready to pay then file a recovery suit against them and if the court pass a decree in your favour after that file a execution petition before court and pray to attach all their belongings.
