Employer not issuing experience / relieving letter and salary dues
ashokkumar
(Querist) 20 April 2014
This query is : Resolved
Hi,
I was recruited for Kuwait company as a contract employee by Indian based company. My initial contract was signed for 9 months and then the contract extended for 12 months. I didn't renew my contract on last November due to salary issues.
I have resigned the contract job on March 2014 and my Indian employer accepted it.
The Kuwait client asked my Indian employer to transfer my work permit to local sponsor, but they had some agreement problems.
My Indian employer send me back to India after cancelling my work permit without informing client or hand over the pending work. In that last week, they kept my passport for visa cancellation and hold for more than 6 days. And my Indian employer got my signature in the final settlement paper from their
local Kuwait sponsor, without paying salary dues.
I stayed in Kuwait room without any proper document for some days, so I send mail to VP & HR manager of the company about the below issues,
1. work permit cancellation can be done in 2 days, but holding my Passport for more than 5 days.
2. Questioned about the final settlement paper signature from Kuwait sponsor(my Indian employer sponsor) without salary dues.
3. company paid salary after deducting 10% tax every month and provided me with form 16A. So I questioned why I was taxed for Kuwait earning and then asked to sign local sponsor final settlement paper.
After coming back to India, they are not issuing my experience letter, relieving letter and salary dues. They are asking me to sign apology letter for sending mail to Vice president of the company.
Is there any Indian law allow employer to hold the experience letter and salary dues for this case. Is there a way to get this document through legal?
Kumar Doab
(Expert) 20 April 2014
You were employed by Indian Company and were sent to another country.
Who processed the salary: Indian or Foreign sponsor?
Since you have repeated Indian Employer you should be able to agitate in India!
Your dues have not been paid. Your signatures were obtained on FNF settlement papers without paying the dues or without enclosing the cheque/instrument of payment Was it mentioned on FNF statement that is advance acknowledgment sent for verification and acceptance and after receipt of it payment shall be released? Or was it mentioned on the statement that payment is being made in cash/by cheque/by DD?
Apparently the company ahs violated the law and you have caught bit on the wrong foot hence they are pressurizing you to sign an apology. However even apology can’t be an escape route!
Did you lodge a complaint with Labor Authority in Kuwait also!
You may meet a lawyer/law firm well versed with such matters and having knowledge of Kuwait Laws.
As per Model Standing Orders Sec;16 ;Service Certificate should be issued to all employees!
Dr J C Vashista
(Expert) 21 April 2014
Incomplete informations, please reply the questions raised by Mr. Kumar Doab, an expert on the subject matter.
Rajendra K Goyal
(Expert) 21 April 2014
Repeated query:
http://www.lawyersclubindia.com/experts/Employer-not-issuing-my-experience-relieving-letter-and-salary-dues-467426.asp#.U1SVEFf9GRQ
ashokkumar
(Querist) 21 April 2014
Hi Kumar,
My Kuwait salary account was credited by Kuwait company(My Indian company sponsor).
They got my signature without paying April month dues and no cheque or instruction is attached.
No I didn't lodge any complaint in Kuwait.
Kumar Doab
(Expert) 21 April 2014
You seem to have done well by sending communications on record in writing to your employer.
It seems that you have avoided to be in conflict in alien land with Kuwait Company!
The labor laws are almost same across the Globe as all of these have been enacted to defend the rights of workforce.
The discussion on your query is from Indian perspective. You can approach an attorney in Kuwait too.
You should succeed to get all due payments and documents narrated by you.
You have been advised in other thread initiated by you too.
You have posted that:
---“ My Kuwait salary account was credited by Kuwait company(My Indian company sponsor). “
Form16A was provided by Indian Company implying salary was processed and disbursed by Indian Employer.
India has Income tax Treaty with Kuwait to avoid double taxation!
Your Income tax lawyer can update you in detail
{ You may find the info useful at: 4; Personal Taxation
http://www.kpmg.com/Global/en/services/Tax/regional-tax-centers/asia-pacific-tax-centre/Documents/CountryProfiles/India.pdf}
Were you provided with any social security benefit in Kuwait e.g. PF, Gratuity etc and was any deduction made from wages? International Workers are covered! The RPFC in nearest PF office can update you! You can also access it on EPFO website:
www.epfindia.gov.in
{6. Whether PF rules will apply to an employee if his salary is paid outside India?
7. Whether PF will be payable only on the part of salary paid in India in case of split payroll?
11. Is there a cap on the salary up to which the contribution has to be made by both the employer as well as the employee?
25. Is there a cap on the salary up to which the contribution has to be made under the EDLI Scheme, 1976 by the employer?
http://www.epfindia.com/IntWorkersNew/IWU_UpdtdFAQs_19112012.pdf}
{ Interpretative declaration regarding article 9:
The Government of Kuwait declares that while Kuwaiti legislation safeguards the rights of all Kuwaiti and non-Kuwaiti workers, social security provisions apply only to Kuwaitis.
https://treaties.un.org/pages/viewdetails.aspx?chapter=4&lang=en&mtdsg_no=iv-3&src=treaty}
{Ministry of External Affairs maintains details at:
http://www.moia.gov.in/services.aspx?ID1=285&id=m4&idp=81&mainid=73 }
---“ They got my signature without paying April month dues and no cheque or instruction is attached.”
If Kuwait Company has not paid April salary but has extracted your signature on FNF statement then it should not mean that the responsibility of Indian Company has ended. It seems to be an internal arrangement that Indian Company shall pay thru Kuwait Company. The reason could be probably that your attendance was marked at Kuwait at client location.
---“ Questioned about the final settlement paper signature from Kuwait sponsor(my Indian employer sponsor) without salary dues.”
You have already updated your actual employer in writing!
The Indian employer should have in writing taken up with Kuwait Company and must have received response that it should have shared with you in writing!
Or it may face to answer the questions that may be uncomfortable for it!
Do you have copy of FNF statement signed by you? What was computed in it? Did the company reduce your earnings by some notice pay/liquidated damages etc and squared off your dues?
The Indian company must have received the FNF document signed by you and it should supply a copy to you or let it state in writing on record that it has not received it!
---“ I didn't renew my contract on last November due to salary issues.”
“I have resigned the contract job on March 2014 and my Indian employer accepted it.”
You have properly resigned, for reason of salary issues, and your resignation was accepted!
Hope you have copy of resignation and acceptance! Did the company state in it to handover the charge etc………………………………….i.e. guidelines for relieving? If NO there was none to be followed by you as per latest instruction! Was there any such T&C on handover etc inserted in 1st contract signed by you? Even if yes you had not renewed the contract!
This is one of the possibilities that there was some understanding between the two companies to extract your signature on FNF without paying the FNF wages! Although before applying deductions from wages
(other than statutory amounts) there should be proper communication on reasons and a private agreement between employer and employee! Employer can not levy deductions from wages that are not permitted by law!
Then there was some agreement problem between the two companies for which you were not responsible! Hence the Kuwait Company can not penalize for it and apply any kind of deduction!
Your Indian company should on its own pay all deducted amounts to you and must agree to provide the copies of agreements that it has signed with Kuwait Company that resulted in deductions/non payment!
The Indian Company seems to have become a party and seemingly should file a complaint against Kuwait Company or extracting signatures on FNF without paying the FNF amounts! YOU have on record informed the employer of this episode!
---“ My Indian employer send me back to India after cancelling my work permit without informing client or hand over the pending work.”
Was there any such T&C on handover etc inserted in 1st contract signed by you?
Did the actual (Indian) employer ask for any handover in any communication after receiving your resignation? If NO it has to answer it on record! You have complied with the instructions of your employer that had cancelled the VISA!
All said and done your Indian Employer might have called you back hurriedly since your passport was held for 5 days in place of 2 days! It might have brought you back so that you do not face harassment and legal traps in an alien country!
You are closest to the facts and you would know it better than anyone else!
It might have asked you to tender apology to save its skin and legal implications!
However you need to defend your interest hence before you make up your mind to tender apology that may affect your interest and rights you may meet a local Labor Consultant/service lawyer along with copies of job advt., job application, interview call letter, selection letter, offer letter, appointment letter, deputation letter, contact signed by you, VISA application signed by you, contract renewal letter, your declinature to renew the contract, salary slips of all months, Form16A, emails sent by you, all communications exchanged by you in writing including on salary issues as pointed by you, list of all calls made by you and received by you (with dates, phone numbers, names and designation of company’s employees contacted, brief minutes of discussion), FNF statement signed by you (if available), VISA cancellation communication, communication to come back to India, return ticket, passport bearing stamps, resignation, acceptance of resignation,…………………………………..provide inputs in person and elaborate on nature of duties, issues, spend quality time with your lawyer, understand the merits and proceed under expert advise of your lawyer/law firm.
Lawyers are skilled in arbitration, mediation, conciliation and your lawyer may succeed to resolve the matter in your favor without the need of litigation.
Your lawyer/law firm can update you on the appropriate forum where you can agitate.
Online discussions have its own limitations.
You seem to have merits and should succeed. Do not hesitate to approach your lawyer/law firm.
There are many threads initiated by employees that travel abroad for earning livelihood, that you may find relevant e.g;
http://www.lawyersclubindia.com/forum/Unpaid-dubai-salary-what-is-the-legal-recourse-in-india-100809.asp#.U1TXIEeBmXU
The lawful authorities in India described in these threads can help you.
The Indian Workers that go abroad to ear their livelihood must form unions to address their issues.
Employees are a huge vote bank which no leader/Got can ignore.
Trade Unions may also guide you and help you.
http://www.moia.gov.in/services.aspx?id1=75&id=m1&idp=75&mainid=73
http://connect.bwint.org/?p=1024
ashokkumar
(Querist) 22 April 2014
Thanks for your valuable suggestion.
Kumar Doab
(Expert) 18 May 2014
Repeated at:
http://www.lawyersclubindia.com/experts/Joining-without-relieving-letter-from-previous-company-472656.asp#.U3iJ7EeBmXU
http://www.lawyersclubindia.com/experts/Employer-not-issuing-my-experience-relieving-letter-and-salary-dues-467426.asp#.U1SVEFf9GRQ
