Advice needed on recovery form company in liue of agreement

 You have presented the incidences and narrated the events in a mature manner.

You have posted that:

------“Even they failed to provide me chair & workstation moreover they failed to provided system login ID.’

{How did you mark your attendance, on line or off line? Did the company provide the forms for opening PF a/c, ESIC etc…..?}

“I left for home after intimating my immediate reporting manager verbally as it was the only means available at that time to intimate them as no system was given/ assigned to me, to drop the e-mail & they don't accept hand written application.”

{Don’t they even provide leave application Format? It is surprising why a company won’t accept handwritten application? You could have sent a telegramme, redg. post, email from your personal email id? More importantly has the company contested your contention that you had informed your Manager verbally? It appears that it had rather declined to extend the leave………You could have sent the copy of Doctor’s bed rest advice by email to company………..

Now you need to maintain that you had kept the componay informed telephonically and may even mention phone numbers, dates of calls, names of company officials, brief minutes of discussion………… }

“after watching my mothers condition as she was completely in bed rest & am the only son of my parent who needs to can take of them. So I told them to give me few more days of unpaid leave sooner my mother get well I will report them”

{It is your moral, social, legal responsibility to look after your parent………..Moreover you had kept the company updated and asked for leave on LOP. You should keep the total medical record of the mother safely including post surgery/hospitalization and bed rest advice by doctor.}

You have not resigned from company, company has terminated you and hence the service agreement.

Do you have the copy of the service agreement? The company is under obligation to provide the certified copy of the agreement signed by employee and company’s designated official to employee (on the spot).

Did the company declared in job advertisement, interview call letter, during interview, selection letter, offer letter, joining report…………that an agreement shall have to be signed?

Did the company issue appointment letter before signing agreement, or did it mention that appointment letter shall be issued only after appointment letter is signed??

Were you employed before joining this company?

Did you sign the agreement in duress..!!!!!!

When the copy of the agreement was supplied to you for signing it, was it already signed by company’s designated employee or you signed first and submitted to company and signature of the company’s official were to be affixed later?

------“ Now they have sent me letter in company letter head in e-mail stating recovery amount.”

The company has mentioned your Chandigarh Address on the letter thru  email or some other address?

Company should supply/you may demand the original letter by redg. post.

You may evaluate the options of contesting the claim form your location at Chgandigarh………

-----“ Worked there for exactly 13 days.” “(Shift timing 5.30pm to 2.30am)’

You may demand the payment of your earned wages for the 13 days…..

Does the company pay extra wages/compensation/off for night shifts

-----“

-------“ I have signed agreement to work for the company for 1 year otherwise I need to pay liquidated damages.’

Has the company demanded payment of liquidated damages in FNF statement and letter sent to you by email?

-------“ And the company terminated my employment as I have not reported office at the specified date.’

What is the reason of termination mentioned in the order of termination? Demand the original copy by redg. post only.

You may demand the notice pay as company has terminated your employment as per terms and conditions on notice period/pay in appointment letter issued to you and contest the contentions of the company that you were on unauthorized absence from duty, absconded, and abandoned the employment.

You may claim that the order of termination has done irreparable damage to your resume/vitae, employ-ability, career, future prospects………

You may mention that you conveyed that were willing to return to employment once your mother recovered and was able to fend for herself.

Notice pay is as per the exit clause of appointment letter. It is a compensation given by one party (Who broke the contract) to other party because of the breach of contract. Law regarding breach of contract is given in section 73 of Indian contract Act 1872. Section 73 is declaratory of the common law as to damages. The basic purpose of damages is to put party whose rights have been violated in the same position, so far as money can do so, as if his rights have been observed. When compensation sum is named in a contract (e.g. employment contract) as the amount to be paid in case of breach then it is know as liquidated damages. When it damages are not given in contract then it known unliquidated damages in these damages will be defined by court on the bases of reasonableness and facts of the case.

Section 74 contract of contract act deals with liquidated damages and penalty. Whether they compensation amount mentioned in contract is liquidated damages or penalty will be defined by court. Compensation amount mentioned in contract will be maximum damages if court found that amount is not reasonable then it can reduce it because compensation is only given for losses not for penalty but court can not increase compensation amount.

Your lawyer may opine that:

MERE USE OF WORDS "LIQUIDATED DAMAGES" AND "PENALTY"' IN A CLAUSE NOT TO BE DECISIVE 

The use of the term penalty or liquidated damages by itself is not decisive, even what is described as liquidated damages could turn out to be penalty on the face of given case. The essence of penalty is a sum paid as in terroem while the essence of liquidated damages is a genuine covenanted pre-estimate of damages.

And may explain the SITUATIONS WHERE LIQUIDATED DAMAGES CANNOT BE REALISED 

And that company may try to scream that it has suffered a legal injury due to breach of contract by you and that: LIQUIDATED DAMAGES ARE RECOVERABLE ONLY WHEN LEGAL INJURY IS SUFFERED 

You may approach a competent and experienced labor consultant/service lawyer specializing in such matters, with copies all documents discussed in this thread, and service agreement, FNF statement, give inpust in person, understand the merits and once you have understood you may proced under expert advice of your lawyer and may submit a fitting reply to put the matter on a “Shut up Mode” now only and attempt to silence it forever.

Let your lawyer's opinion be final on all points discussed in this thread. 

Your lawyer may pick up some points from telephonic conversation pertaining to coercion, threat and may opine that you can file a case at Chandigarh which may grant you some handle on the company and settle the whole issue without litigation.

Companies are known to settle and companies are also known to become adamant and recalciterant.

If the company proceeds to file case, you may have to contest it and court shall decide.

In the meant time you may go thru the attachments.

In future consult elders in the family, competent and experienced well wishers, lawyer/law firm, before you sign on the dotted line……………………….

In your trade if no employer shall employ without service agreement then you must keep access to a smart lawyer.

Valuable advice of learned experts/members is sought.

Sir First of all lots of thanks for your kindness & time. It has really given me morale supoort that somebody is standing with me with my pain.

Just wanted to add few more important things that I forgot to mention....... after getting threat in the form of e-mail that to join immediately otherwise company will take appropriate action against you made me disturb at that point of time when my mother was in bed. So after getting this particular mail I have replied them offering my resignation. Although I propsed them to extend my leave & if possible extend my re-joining date but the same was never considered / rejected / accepted, no discussion was made at this from the company's end even leave extension request was never been acknowledged. The cab provided to drop at home at odd hours i.e. 2.30am midnight was so scary because they used to drop me at the mid of the road which is 1-1.5km far from my home. At that time anything could happen with me, that was risky for my life.

At that time my mother has alraedy undergone with 2 major operations but the same was shared with me after few months when she again got infected (found puss in body operated areas). And again needs to get treated where she was adviced to take complete bed rest for next 4 months with no movement by train/road otherwise it can make her case worse. At that time I moved to see her condition when she was completely at bed.

Sir the answers as below:

{How did you mark your attendance, on line or off line? Did the company provide the forms for opening PF a/c, ESIC etc…..?}

Sir attendence was marked by access card punching in entry/exit gate. Yes comoany has provided forms for opening PF a/c.

{Don’t they even provide leave application Format? It is surprising why a company won’t accept handwritten application? You could have sent a telegramme, redg. post, email from your personal email id? More importantly has the company contested your contention that you had informed your Manager verbally? It appears that it had rather declined to extend the leave………You could have sent the copy of Doctor’s bed rest advice by email to company………..

Sir compnay has strict policy for no use of paper, pencil & pen in office/prodution floor to keep client data confidential.
 And thus I have to intimate them verbally at that point of time due to non availability of workstaion but after few days I e-mailed them to extend my leave without pay.

Do you have the copy of the service agreement? The company is under obligation to provide the certified copy of the agreement signed by employee and company’s designated official to employee (on the spot).

Sir, they have not given any signed copy from there designated official. They have taken the sign from me & kept it with them. It was drafted in Rs. 25 stamp paper by me as per the dreft provided by the company.

Did the company declared in job advertisement, interview call letter, during interview, selection letter, offer letter, joining report…………that an agreement shall have to be signed?

Yes

Did the company issue appointment letter before signing agreement, or did it mention that appointment letter shall be issued only after appointment letter is signed??

Company has provided only offer letter not the appointment letter. Apointment letter was provided after signing the agreement on joining date.

Were you employed before joining this company?

Yes I was but serving the notice period based on the offer letter received from the company.

Did you sign the agreement in duress..!!!!!!

No

When the copy of the agreement was supplied to you for signing it, was it already signed by company’s designated employee or you signed first and submitted to company and signature of the company’s official were to be affixed later?

No it was not signed by the company, I signed it 1st & submitted to company but no signed copy of the same was provided at company's end.

The company has mentioned your Chandigarh Address on the letter thru  email or some other address?

No address is mentiond in letter

Does the company pay extra wages/compensation/off for night shifts

No

Has the company demanded payment of liquidated damages in FNF statement and letter sent to you by email?

Email attached  "On the completion of your full and final processing it has been observed that there is a recovery of an amount RsXXX. They have not mentiond term liquidated damages only F&F recovery is mentioned in the sheet.

Sir kindly suggest me what should I do in present case

You have posted that:

-------‘Although I propsed them to extend my leave & if possible extend my re-joining date’

“even leave extension request was never been acknowledged”

“So after getting this particular mail I have replied them offering my resignation. Although I propsed them to extend my leave & if possible extend my re-joining date”

“And again needs to get treated where she was adviced to take complete bed rest for next 4 months with no movement by train/road otherwise it can make her case worse. “

{Keep this bed rest advice safely with you.}

Company could have adopted a humanitarian approach and provided Leave on LOP.

However it has chosen to terminate the employment with this the service agreement also gets terminated.

The service agreement should be studied by your lawyer.

Chandigarh is a good city. You belong to it.

There are few labor consultants/service lawyers in each city and they are experts and they practice only  in labor law/service matters. They are well known.

You must and you should approach a competent and experienced labor consultant/service lawyer, and put the matter on “Shut up Mode’ now and forever.

----------“The cab provided to drop at home at odd hours i.e. 2.30am midnight was so scary because they used to drop me at the mid of the road which is 1-1.5km far from my home. At that time anything could happen with me, that was risky for my life.”

Did you ever share it with your employer? The employer should have arranged to drop you in the dead of night, at your doorstep.

If employer did not do anything it renders it unworthy of being employed with.

-------“No address is mentiond in letter’

It could be deliberate to avoid cause of action has arisen at Chandigarh.

Demand original letters by redg. post.

--------“They have not mentiond term liquidated damages only F&F recovery is mentioned in the sheet.’

Claim your dues.

Declare FNF as erratic.

Let your lawyer’s opinion be final on all points discussed in this thread.

You may proced under the experts advice of your lawyer who has seen all of your docs and has analysed the merits. 

Valuable advice of learned experts/members is sought.