Legal notice on not serving notice period

 

Such establishment in Delhi should be covered by Delhi Shops and Commercial Establishments Act……………………..that was enacted to govern the service conditions of employees working in establishments covered by the Act………………..and able Labor Law Consultant/service Matters Lawyer/Law Firm after asking you a set of structured questions may opine that you may be covered by the def. of  ‘Employee’ as in this Act. This Act does not discriminate between ‘Workman’ and ‘Non Workman’.

 

 

Is standing orders and service conditions are not applicable then  this Act shall govern the service conditions.

 

The notice period is part of service conditions and notice period for < 12 months of service is not 60 days……………………….IN fact it not more than 30 days.

 

You have given satisfactory reply of emails and may tender fitting and suitable reply of last email as well and deny the charges.

 

You may also demand certified copy of salary slip of all months and each deduction to be explained.

 

The employer has to maintain and submit record of work hours clocked for each day as per various registers as prescribed in Delhi Shops and Commercial Establishments Rules that you can obtain from employer or from Inspector appointed under Delhi Shops and Commercial Establishments Act or thru RTI.

 

If you have worked above 8hrs/day and 48 hrs/week you may claim OT.

 

The attempt is to allege misconduct on you and terminate or spoil personnel file and BGV/reference check.

You may demand to allow examining the personnel file and highlighting your contributions and cite that never ever any memo/stinker/show cause notice was issued to you, and request to take back the charges leveled at the time of separation…………………..and clarify that no sensitive data etc is with you from date of resignation and no loss is caused by you.

 

You need to handover the charge under proper acknowledgment.

 

 

 

You may also demand to supply the acknowledgment of notice/resignation, acceptance, salary slip of each month, explanation of deductions, OT, Correct FnF statement showing adjustment of correct notice period/pay/LTA/Leave encashment/OT/bonus/reimbursements/incentives/Form16 as per correct FnF statement, payment of correct FnF dues,service certificate, relieving letter (with good comments and avoid without or adverse comments), NOC/NDC, handover of charge etc……………………………

 

Try to resolve by applying your own skills.

 

Your counsel may opine that you can approach:

 

 

Inspector appointed under Delhi Shops & Commercial Establishments Act, : If your establishment is covered by the Act and you are covered by the def. of ‘Employee’ as in the Act. This Act does not discriminate between ‘Workman’ and ‘Non Workman’……………

 

Inspector appointed under Payment of Wages Act (if wages as per def. of wages in the Act is Rs18000/pm)

O/O Labor Commissioner; if you are covered as “workman’…………………and if your counsel opines that you are covered. Your counsels may opine that you are covered.

 

Higher/Highest Officials of Dept. of labor of your state...............

 

Employee's/Trade Unions e.g. CITU/INTUC/AITUC/BMS etc and if the unions embrace you.

 

 Your counsels may opine that you can lodge complaint u/s 406,420 and file ‘winding up’ petition as unpaid wages are debt on employer, civil suit for recovery etc

 

@ Kumar Doab

Dear Sir, 

Thank for your quick reply.  I have discussed my matter with two labour law consultant, he said consulting firm in Delhi comes under Delhi shop and Establishment act.  Based on that I have prepared my reply, for which I am seeking your and the expert memebrs  opinion if there is any corrections required. 

Reply 
-------------------
Dear Sir,

This is in reference to the email received on September 1, 2015, from XYZ Pvt. Ltd. regarding the due payment of notice period.

I would request you to consider my reply, which is as follows. 

1. Notice period payment: Establishment like Service, Consulting and Recruitment in National Capital Region of Delhi, are covered under Delhi Shops and Establishments Act, 1954, as the Industrial employment and Standing order Act 1946 is not applicable. 
 
According to the Sub-section-2, Section 30 of Delhi Shops and Establishments Act, 1954, which governs notice period for the permanent employee, is 1 month. 
 
Hence the clause of two months notice period mentioned in Section-3 in the employment contract is not valid or void, as it is not framed  according to the law governed, and pertaining to that I am not liable to pay two months salary to XYZ  Pvt. Ltd. 
 
2. Late coming: I am highly confused with statement mentioned in your email dated September 1, 2015
 
"We have not taken any disciplinary action till date inspite of your continuous and unjustified late marks and leaves as we understood that you are facing some problems on your personal front and in fact supported you through this time."
 
The fact is, company has been regularly deducting my salary for which I have provided no explanation for the any of the months. The details of deduction in my salary are as follows.           
                     
Sr. No    For the month of    Salary Credited Date     Credited Amount    Deductions
1    July    12/08/2015    18,940.71    3,059.29
2    June    10/07/2015    18,333.00    3,667.00
3    May    10/06/2015    19,161.00    2,839.00
4    April    14/05/2015    16,867.00    5,133.00
5    March    15/04/2015    18,806.00    3,194.00
6    February    14/03/2015    20,429.00    1,571.00
7                    
8                    
9                    
10                    
11                    
              
I am unable to understand the basis of these deductions. Therefore, you are requested to provide certified copy of salary slip for all the months and with details of the deduction by September 12, 2015.

I would also like to bring in your notice that I have suffered with lot of tension during my 11 month of employment with company as I have always received my last month salary after 10th  of the next month. Which is not as per advised by Delhi Shops and Establishments Act, 1954, in the Sub-Section 3, Section 19, however I made no complain; as I understood company would be fair to me. 

Here, I would also like to highlight that I have been provided no incentive for my work during my 11 months employment with the company as defined in the Section - 8  in the employment contract

 3. Charge of mental agony, harassment: With reference to the email received on August 24, 2015, and the subsequent email on September 1, 2015. The company has alleged of misconduct by taking uninformed leave, without verifying that I had already submitted a request for an emergency leave, for which I have already submitted the proof to you in my reply sent to you on August 27, 2015. 

4. Salary Month of August 2015:  I am surprised to see that the company has not even mentioned in both the email regarding my 17 days salary, due to the organization for the month of August 2015. It is giving me a feeling that company has no intention to pay my due salary. 

Hence, you are requested to credit my due salary in my salary account by September 12, 2015.

5. Resignation, acknowledgement, and F & F:  In my email sent to you on August 27, 2015, I had requested to accept my resignation submitted to the management on August 17, 2015. I have received no acknowledgement receipt till this date. Hence, you are requested for the acknowledgement of resignation and correct F & F. 

I would also like reiterate, with best of my knowledge I am not carrying any kind of XYZ Pvt. Ltd., sensitive data, and assets along with me. However,   since I have worked almost a year for the company I would be happy to provide reference /information related to things on which I have worked.

6. Appointment Letter:  I am sure company must have verified the data before writing me. You are requested to provide a signed copy accepted appointment letter released on August 12, 2014 by Monday, September 12, 2015.

At present my family condition is very sensitive and chaotic , which creates a lot of daily life challenges, and in such a circumstances receiving of a unverified allege of misconduct from the company is letting me suffer through a lot of mental agony and harassment.

It is apparent from the two received email that the company has been ignoring the facts knowingly and has not maintained required data of personal file, which may provide a wrong data on reference Check /BVG. That may affect carrier.

In the case of not receiving of the details of deduction along with certified salary slip, acknowledgement receipt of resignation, due salary for the month August 2015, and a copy of signed accepted appointment letter  released on August 12, 2015, I shall be forced to file a case in civil court against the company and the , management for knowingly creating a situation for mental agony and harassment, and subsequently to take this forwards with the commissioner , and a case in the labor court to check of my personal file, and for the due salary. 

-------------------

I am happy that you have cultivated the inputs given to you.

 

You may show the email drafted by you to the two labour law consultants approached by you and let them polish it further.

 

 

Dear Sir, 

I have recieved a reply from my company. However the definition of Delhi Shops and Establishments Act, 1954 , is seems to be manufactured. As it has taken from the Delhi high court judgement. 

They have also refused to give explanation on the deduction 

They have also refused to give accepetence of resignation. 

I would be happy to recieve furthr suggestion frm you. 

-----------------------------------------------

Dear Ms. Jyoti

I would like to give  you to reply of your e-mail dated 8-9-2015 , which is as follows. 

It is stated that your plea that Establishment like Service, Consulting and Recruitment in National Capital Region of Delhi, are covered under Delhi Shops and Establishments Act, 1954 are completely wrong. That our concern does not come under the purview of Delhi Shops and Establishments Act 1954 which is clear from the following definition:

 

"commercial establishment" means any premises wherein any trade, business or profession or any work in connection with, or incidental or ancillary thereto is carried on and includes a society registered under the Societies Registration Act, 1860 (21 of 1860), and charitable or other trust, whether registered or not, which carries on any business, trade or profession or work in connection with, or incidental or ancillary thereto, journalistic and printing establishments, contractors and auditors establishments, quarries and mines not governed by the Mines Act, 1952 (35 of 1952), educational or other institutions run for private gain, and premises in which business of banking, insurance, stocks and shares, brokerage or produce exchange is carried on, but does not include a shop or a factory registered under the Factories Act, 1948 (43 of 1948), or theatres, cinemas, restaurants, eating houses, residential hotels, clubs or other places of public amusements or entertainment;

 

 It is stated that from the perusal of the above definition it is clear that our concern does not come under Delhi Shop and establishments Act 1954 so the question of one month notice does not arise. It is further stated that you are bound by the terms and conditions of the appointment letter dated 01-09-2014. According to that either you give two months notice before leaving your job or pay two months salary. It is stated that you cannot escape from your liability by taking plea of different nature. It is pertinent to mention here that on 19-8-2015, you went on unplanned leave without any intimation to your employer. You have committed a criminal breach of trust. You are not following the terms and conditions of the appointment letter duly signed by you. It is further intimated that your resignation letter shall not be accepted until you fulfill the terms and conditions of the appointment letter. It is further submitted that at the time of signing the appointment letter, the copy of the same was provided to you and our concern is not supposed to give the copy again.

 

                IT IS FURTHER STATED THAT AS THE PROVISION OF DELHI SHOPS AND ESTABLISHMENTS ACT 1954 DOES NOT APPLY ON OUR CONCERN, SO NO PROVISION, SECTION OR SUBSECTION IS APPLICABLE ON OUR CONCERN.

 

2.            The company is not bound to disclose the nature of deduction at this stage. It is stated that at the time of receiving  salary, you never asked such kind of question and accepted the salary accordingly. It is also stated that you usually come late in the office and take a plea of family problem, even then Vaibhav Khandelwal M.D. of the company had co-operated you every time. It is specifically mentioned that there was a friendly atmosphere in the office and you enjoyed it.

 

3.            it is further stated that our concern had co-operated with you due to your family condition, but we cannot bear such kind of your behavior. We have sympathy with your family condition, but we cannot override the terms and conditions of appointment letter or we cannot tolerate such kind of your behavior.  Dear Madam You have to follow each and every terms and conditions of appointment letter.

 

4.            It is stated that instead of sending coercive e-mail regarding filing of suit etc, you are requested to co-operate with our concern so that friendly atmosphere shall continue in future and you are also requested to follow the terms and conditions of appointment letter immediately as early as possible.

 

Thanking You,

You have posted that:

 

----"However the definition of Delhi Shops and Establishments Act, 1954 , is seems to be manufactured. As it has taken from the Delhi high court judgement. "

 

Can you copy paste,attach the judgment and post the link to the judgment. If yes you may do everything as sometimes the file may not get attached or may not be downloadable."

 

How are you convinced that the definition is manufactured?

 

----It is stated that your plea that Establishment like Service, Consulting and Recruitment in National Capital Region of Delhi, are covered under Delhi Shops and Establishments Act, 1954 are completely wrong. That our concern does not come under the purview of Delhi Shops and Establishments Act 1954 which is clear from the following definition:

 

"commercial establishment" means any premises wherein any trade, business or profession or any work in connection with, or incidental or ancillary thereto is carried on"

 

" IT IS FURTHER STATED THAT AS THE PROVISION OF DELHI SHOPS AND ESTABLISHMENTS ACT 1954 DOES NOT APPLY ON OUR CONCERN, SO NO PROVISION, SECTION OR SUBSECTION IS APPLICABLE ON OUR CONCERN."

 

The Inspector, CHief Inspector appointed under the Act can verify whether the statement of the company is true or false.If required you may pursue thru RTI.

 

However you have succeeded to extarct a written statement.

 

If the Inpsectorate confirms that the company is covered by DELHI SHOPS AND ESTABLISHMENTS ACT then you can ask to supply the various prescribed register on payment of wages, deductions.

 

 

----"The company is not bound to disclose the nature of deduction at this stage. It is stated that at the time of receiving  salary, you never asked such kind of question and accepted the salary accordingly."

 

Demand salary slip showin deductions and of each month.

If you are covered by the Payment of Wages Act then you may demand thru Inspector appointed under this Act also.

 

Rest of the points are to be contested by you if the contentions of the company are not true or satisfactory.

 

You may approach various female employee's/employee's/Trade Unions, able Labor Law Consultant/service Matters Lawyer/Law Firm.

Dear Sir, The web link of the judgement is https://indiankanoon.org/doc/147071732 and the judgement is as follows ------------------------------- Delhi High Court Mantec Consultant Pvt. Ltd. vs State & Anr. on 11 April, 2012 Author: Mukta Gupta * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. No. 2608/2010 & Crl. M.A. 13711/2010(Stay) % Reserved on: 21st March, 2012 Decided on: 11th April, 2012 MANTEC CONSULTANT PVT. LTD. ..... Appellant Through: Mr. O. N. Sharma, Advocate versus STATE & ANR. ..... Respondents Through: Mr. Mukesh Gupta, APP for the State. Ms. Nandita Rao, Ms. Veronica Mohan, Adv. for R-2. Coram: HON'BLE MS. JUSTICE MUKTA GUPTA 1. By the present petition, the Petitioner seeks setting aside of the order dated 28th July, 2010 passed by learned Metropolitan Magistrate summoning the Petitioner company for offence under Section 22 (A) of Minimum Wages Act (hereinafter referred to as 'M.W. Act') and quashing of the criminal complaint No. 15/10/MW titled as MW vs. Mantec Consultant Pvt. Ltd. filed before the learned Metropolitan Magistrate. 2. Learned counsel for the Petitioner contends that the impugned order summoning the Petitioner company is bad in law. It is contended that provisions of Minimum Wages Act are not applicable to the Petitioner Company. The Petitioner Company is neither a scheduled employment nor governed by Delhi Shops & Establishment Act. The company is incorporated under the companies Act and governed by the provisions of the Companies Act, 1956. Furthermore the Petitioner is a consultancy company having no factory but a call centre registered under STPI. Learned counsel further stated that present complaint is filed with malafide intentions to harass the Petitioner. Before the Dy. Labour Commissioner (South) the Petitioner was present but Sachin Sharma (Workman) absented himself all the time. Thus, the proceedings before the Dy. Labour Commissioner due to workman being not present could not be proceeded further and the same were closed with liberty to workman to reopen the same. Despite the attitude of the workman, Respondent No. 2 filed a false and illegal criminal complaint against the Petitioner based on the complaint filed by the workman Sachin Sharma. Summons issued to the Petitioner are in contravention to the provisions of Section 204(3) Cr.P.C. as the summons issued were not accompanied by the copy of the complaint. 3. Per contra, learned counsel for the Respondent No.2 states that the present petition is an abuse of process of law. Respondent No.2 after verifying the facts of the complaint and giving ample opportunity to the Petitioner has filed the criminal complaint before the learned Metropolitan Magistrate. The Petitioner Company falls within the ambit of Delhi Shops and establishment Act to which the new minimum rates of wages in Delhi is applicable. Merely its incorporation under the Companies Act does not take it out of the ambit of the Delhi Shops and Establishment Act. Thus the present Petition has no merit and is liable to be dismissed. 4. Heard learned counsel for the parties. 5. Briefly, the facts of the case are that on 19th March, 2010 one Sachin Sharma employed with the Petitioner M/s Mantec Consultant Pvt. Ltd. filed a complaint against the Petitioner in the office of Deputy Labour Commissioner, District South. This complaint was marked to Respondent No.2 for investigation. For the purpose of investigation, Respondent No. 2 visited the establishment of the Petitioner at Vishal Bhawan, 95 Nehru Place. The Petitioner could not produce the records demanded by Respondent No.2, therefore, the Petitioner was directed to produce the record in his office. Despite giving ample opportunity granted to the Petitioner Company, no record was produced before Respondent No.2. Thereafter, Respondent No.2 filed a complaint against the Petitioner for violation of Rules 21(4), 25(2), 15, 26(2), 14, 10 and 22 of the M.W. Act punishable under Section 22 of the Act. Learned Metropolitan Magistrate after perusing the record vide order dated 28th July, 2010 summoned the Petitioner. This summoning order passed by the learned Metropolitan Magistrate is impugned in the present petition. 6. It is relevant to note that the Minimum Wages Act applies to all the employments mentioned in the Schedule as notified by the State Government. In case where the employment is not notified under the Schedule, then for the purposes of determination of the minimum wages in such employments, the Delhi Shops and Establishment Act comes into play. It is admitted by the Petitioner that the company is a call center. It may be noted that the services of the call centers are governed by the Shops and Establishment Act. In Delhi, the Delhi, Shops and Establishment Act, 1954 (in short the Act) governs the minimum wages of the establishments which are not covered/scheduled under the Minimum Wages Act. Section 2(5) of the Act reads as under:- 2 (5) "commercial establishment" means any premises wherein any trade, business or profession or any work in connection with, or incidental or ancillary thereto, is carried on and includes a society registered under the Societies registration Act 1860 (XXI of 1860) and charitable or other trust, whether registered or not, which carries on any business, trade or profession or work in connection with or incidental or ancillary thereto, journalistic and printing establishments, contractors and auditors establishments quarries, and mines not governed by the Mines Act, 1952 (XXXV of 1952), educational or other institution run for private gain and premises in which business of banking, insurance, stocks and shares, brokerage or produce exchange is carried on, but does not include a shop or a factory registered under the Factories Act, 1948 (LXIII of 1948), or theatres, cinemas, restaurants, eating houses, residential hotels, clubs or other places of public amusement or entertainment; 7. Thus the Section applies to all the premises where trade, business or profession or any work in connection with or incidental or ancillary thereto is carried on. The section specifically excludes a shop or a factory registered under the Factories Act. Had the legislature intended to exclude the companies registered under the Companies Act from the purview of the Section, it would have specified the same as done for a factory registered under the Factories Act. It is, therefore, clear that where any company carries on any work which is ancillary or incidental to any business, it will be covered/governed by the Delhi Shops and Establishment Act. Hence the contention of the learned counsel for the Petitioner that being a call centre company it is not governed by the Delhi Shops and Establishment Act holds no ground. Vide notification dated 26th July, 2011, the minimum wages of the Employment in all Shops and Other Establishment are covered by the Delhi Shops and Establishment Act, 1954 and not covered by any other scheduled employment were revised. Thus the Petitioner Company being governed by the Delhi Shops and Establishment Act, the new minimum wages applicable to Delhi as revised by the notification will be applicable to the employees of the Petitioner Company. The violation of the rules of the Delhi Shops and Establishment Act will make the Petitioner liable to be prosecuted under the Act. I find no force in the contention of learned counsel for the Petitioner that the summons issued to the petitioner are bad in law. It is well settled that the provisions under Section 204(3) Cr.P.C. are merely directory and failure to attach copy of the complaint petition to the summons would not vitiate the trial. 8. Keeping in view the facts and circumstances of the case, I find no reason to quash the complaint or set aside the summoning order. The summoning order suffers from no illegality warranting interference of this Court. The petition and application are accordingly dismissed being devoid of any merit. (MUKTA GUPTA) JUDGE APRIL 11, 2012 'dk' -------------------------------