The employer can not retain original marks sheet as collateral, even if you have not tendered notice pay.
It is your property and employer can not create any lien on it.
You can approach even police. Speak to your elders in the family, community leaders and seek their support.
You have made the blunder mistake.
Did the employer demand original marks sheet in writing and did it state the purpose for which it is required by them and did it issue acknowledgment/receipt?
Employer should provide acknowledgment of notice of resignation and issue the guidelines as per wishes of employer on exit formalities, and thereafter should provide acceptance of resignation, work experience/service certificate, relieving letter, FNF statement for verification and acceptance by employee, payment of FNF dues/wages, form 16 as per correct FNF statement, PF number/account slips of entire tenure of service/attested copies of PF withdrawal-transfer forms, Notice of determination Gratuity, NOC/NDC...........................................etc
Employee can demand all of these to be supplied by redg. post and you may add that postage prepaid, self addressed envelope is attached wherewith for sending the redg. post to you.
>> first point to be understood is that whether the notice period should be applicable in your case or not for service of say 3 months (Oct-Dec12)?
Were you under period of probation when you separated?
As per Model Standing Orders notice period/pay during probation period is NIL.
13. Termination of employment.- (2) No ....................... probationer................. shall be entitled to any notice or pay in lieu thereof
>>Notice period/pay is stated in Shops and Commercial Establishments Act of the state and as per length of your service it may be NIL.
Has the establishment paid last month salary?
It can compute annual leave encashment, salary and other dues to be paid and adjust notice pay in FNF statement and settlement and supply the correct FNF statement for verification and acceptance by employee.
Since employer has not been paying the earned wages it must have not paid the contributions of PF,ESIC, group insurance etc also......................................and must have not deposited TDS.
The non payment of wages, issuance of wage slip that should be verified and signed by employed as acceptance, is default by employer and can be penalized.
The time and day of payment of wages is fixed and the employee can lodge a compliant the minute wages are not paid and delayed even if by a day. The employer can be fined Say Rs.7500/per instance..............................
>> Your establishment if not excluded/exempted (that needs to be checked and confirmed from Inspector under this Act) must have registered under the following enactment and must have displayed the registration certificate near entrance/on notice board.
If you are covered under the def. of person employed under this act you can approach the inspector/chide inspector.
THE TAMIL NADU SHOPS AND ESTABLISHMENTS ACT, 1947
(ACT XXXVI OF 1947)
2.Definitions.
“commercial establishment” means.........
(12) “Person employed” means....................
(18) “wages” means............
4.Exemption.
6. Exemptions
28. Power of Inspector to act for person employed
29. Responsibility for payment of wages
30. Fixation of wages period
32. Time of payment of wages
34. Deductions which may be made from wages
41. Notice of dismissal: {{{ For period of service<6 months it is NIL}}}
Apparently you have worked for 6 months and not less than 6 months hence as per this act like employer employee should also tender 6 months notice or notice pay in lieu of it.
{However you may get some relief as per Model Standing Orders if applicable in your case.}
43. powers and duties of Inspectors
>>> There are threads to suggest that employees have been contemplating to lodge criminal complaint u/s 406,420..................
And to approach employer as creditors treating unpaid wages as debt on employer.
https://www.lawyersclubindia.com/forum/details.asp?mod_id=72011&offset=1#.UNRXofLZ1JI
Employee can approach:
-Lawyer/law firm: A legal notice can help to drill sense into the heads. You may request your lawyer to include theHR personnel, Manager Finance, appointing authority and MD in list of noticees............
Designation alone does not decide employee is covered as ‘Employee’ as in Shops and Commercial Establishments Act, and ‘Workman’ as in ID Act....................
Your lawyer may ask you a set of structured questions and may opine that you are covered.
Your lawyer may even opine that the relationship was not that of employer-employee and you need to proceed for recovery of dues.
-Trade Unions/ Employees Unions: They know precise ways to handle such issues
-Inspector under Shops and Commercial Establishments Act;
-Inspector under Payment of Wages Act( applicable to all employees drawing wages as per def. of wages in the enactment up to Rs.18000/pm) :: The period to lodge complaint with Inspector under Payment of Wages Act is 1Y however to condone the delay is pleasure of the authority.
-RPFC, Addl. CPFC n the state, CPFC......................for PF
-Jurisdictional ESIC Inspector, for ESIC
-ITO-TDS where employee files ITR and Jurisdictional Cit-TDS where employer files ITR
-o/o Labor commissioner and Labor Inspector
-Civil Court.
All said and done if notice pay in lieu of notice period is applicable to you, then you need to pay it.
Employer can waive off the notice pay but you can not claim it as a matter of right.
However employer can not keep original educational certificates of employee.
There are court judgments delivered in Tamilnadu e.g:
Madras High Court
Dr.S.Rajesh vs The State Of Tamil Nadu
Approach your lawyer. The lawyer that has seen all of your docs and has analyzed the inputs can advice you the best.
