On bonded labour
Manish Kumar
(Querist) 08 May 2014
This query is : Resolved
Dear Sir
These are some points that is written on my Offer letter -
1. Probation period
You ll be on probation for a period of six months from 28th January 2013 to 27th July 2013. The company reserves the right to extend ot terminate your services by giving 15 days notice or in lieu of 15 days salary without any reason thereof.
2. Guarantee period
You need to give guarantee to the company that you will stay for atleast one year. At the time of joining, You need to give the original certificates to the company. We will be returning the original certificates to you after completing one year. there will be only one month notice period after the completion of one year.
3. Notice period
This contract of employment is terminable by either party giving one month notice. Either party is not bound to give any reason thereof. The company reserves the right to pay or recover basic salary in lieu of notice period. Further, the company may at its discretion relieve you from such date as it may deem fit even before the expiry of notice period without compensating for the unexpired period and is not bound to give any reason thereof.
Please go through the above points and suggest me what to do.
Below are the details that has happened with him: -
Today Company HR called me and was saying that Management has taken final decision and they are ready to give me my experience letter only if I am paying back money from August 2013 to January 2014.
Please tell me where was my fault.
1. I joined a company based in Bangalore on 28th January 2013 with a salary of 12000 per month.
2. Company took all my original certificates of 10th, 12t and Btech and didn't gave me any proof, they gave me offer letter after 4 months of joining.
3. On 1st of July 2013 I gave my resignation letter.
4. From 1st of July 2013 onwards I was following both manager and Company HR on whether my resignation will get accepted or not but there was not at all any response from management side.
5. On 31st July 2013 evening when I said that I am going to take my resignation back then Company HR told me no don't do that tomorrow management will give some decision.
6. on 31st July 2013 evening my company email-id was blocked so that I cannot take my resignation back.
7. On 1st August 2013 morning when I reached office I was informed by Company HR that I don't have to come office from 1st August 2013 and I will not get any salary of last 45 days i.e 16000 rs. and also I will not get any relieving or experience letter.
8. When I said I want to continue in work they said no that is not possible now.
9. I was not allowed to speak with any of the higher management persons.
10. On October month my all original certificates was sent to my hometown.
11. I am following on email from many days to get my experience letter.
12. Company HR is saying not to write any email to higher managment.
Now please tell on which point I went wrong ?
If management has accepted my resignation then why I am not getting any letters and they are asking me for money ?
Regards,
Manish Kumar
P. Venu
(Expert) 09 May 2014
Now that you have received back your certificates, try to live beyond the past. Your certificate is your personal property. No one else has any right over it.
Rajendra K Goyal
(Expert) 09 May 2014
Once you have been relieved from the company, HR has no right to ask for not demanding your dues by sending e-mails / letter to higher management.
Consult a local lawyer dealing in service matters and send legal notice to company.
Manish Kumar
(Querist) 09 May 2014
Dear Experts,
Thank for the responses.
My present situation is like this, I am working in a company and they did background verification of my previous job and as I have not submitted any experience letter of my previous company so they are asking me to produce the letters otherwise I will loose my job.
This was the reason I was following over e-mail to my previous company HR, Manager, CEO, CTO but they didn't replied of my single mail.
Verbally they said to pay back all money then only they are ready to give me letters.
In my future also I will face the same situation as every company will ask me for these letters.
I have worked for 6 months and 4 days so I was just asking them to give me the letters but they are asking me to pay back all money then only they will give my letters.
As a proof I have the offer letter, payslips, Bank statements and email over whiich I was doing communication of previous company.
Now please suggest me what step should I take and how should I proceed.
T. Kalaiselvan, Advocate
(Expert) 09 May 2014
Do you have the proof for they having demanded you to pay to them the salary amount for 6 months ?, secure that evidence, also you have evidence of they deducting your one and half month salary with you?, with all these evidences, you may write to the company's top management about the company's treatment to your request and seek for its intervention, while addressing a copy of this letter to your present employer too so that he will be n the knowledge of all the hardships you are undergoing in this regard.
Manish Kumar
(Querist) 09 May 2014
Dear Sir,
Thank you for response.
They have told me verbally to pay back all money.
I can only show proof that they have not given 1 and a half month of my salary.
Manish Kumar
(Querist) 09 May 2014
Company HR is always saying that this decision has taken by the higher management to pay back all money as I have broken the bond of one year.
T. Kalaiselvan, Advocate
(Expert) 10 May 2014
If they have verbally told you to make payment, do not accept it, just ignore it and write a request letter seeking your experience letter from them as if nothing has happened in the past between you and the company, send a copy to the company's top management as well as to your present employer too, you will get a result from either of the place.
Manish Kumar
(Querist) 10 May 2014
Dear Sir,
In my previous company CEO (Husband - Wife)itself is the owner of the company, I wrote all email to them keeping in cc HR,Manager but there was no reply from them.
They are communicating through HR and he is saying not to write email again and again.
If you will say, I will forward you all emails and scan copy of my offer letter, payslips etc.
Manish Kumar
(Querist) 10 May 2014
Dear Sir,
On 1st August 2013 when they said me that I don't have to come to the office and I will not get anything from the company then I told them that "I will go to the court" then they were saying that they do have lawyers and as I have broken the bond of 1 year so it will go against me.
That is why I was scared of taking any action against them as it may affect my career.
In future I don't want to face this kind of problem so I was requesting them to give letter.
My previous employer has already given me lots of mental pressure and also holding my 16k rs. and asking for more money if I want experience letter.
Please help me out what I can do.
My present employer is not saying me anything as of now as they have work dependency on me.
T. Kalaiselvan, Advocate
(Expert) 10 May 2014
Under the given circumstances after endorsing a copy to the present employer of the letter requesting the previous employer to give you the experience certificate/relieving letter, you may convince the present employer your inability to provide the said certificate and the same be waived off.
Kumar Doab
(Expert) 10 May 2014
What is this establishment; Commercial, Industrial, Small Enterprise?
The company might have displayed its registration certificate near entrance and you can find out from the certificate easily!
What is its line of business e.g; IT/ITeS, Banking, Insurance, publishing, engineering etc?
What was your designation and nature of duties?
Are you a member of any employee’s union, trade union?
The above information shall help, hence post it.
The company has written it s demand to retain your original certificates as collateral, in appointment letter issued to you and this can be easily termed unfair, bad, intent for bondage, illegal…………………unlawful. Your original educational certificates are your property and employer can not have any lien on it.
On the top of that employer has not issued any acknowledgment and receipt for it.
There are threads to indicate employees have lodged complaints with police and intervention by even a police constable was sufficient to get the certificates back from employer.
There are judgments by courts of law that original certificates can not be retained.
The employees unions, trade unions have been protesting.
Have you retained the envelope in which certificates were returned to you? Any one at your native address can be a witness that original certificates were packed in it including the postman.
You may have any notions that this employer is daring but from your post it can be made out that he/she is fearsome and has been pushing the HR personnel in front and this good for nothing HR personnel without understanding what he is indulging in and what could be its implications is becoming executioner by his sweet will.
Have you recorded the calls (audio/visual)? Have you submitted the minutes for being asked not to come to office from dated……………………..and other discussions? You should have. You can do it now also. Keep some witness also with you. Always do it.
This shall serve as evidence and save you from deduction of notice pay too. You were not allowed to serve the notice period. The resignation can not be accepted before expiry of notice period. Supreme Court of India has given such judgements. In your case company shall have to tender notice pay to you since it did not allow you to serve the notice period and forced you out from office. This can be deemed as forced termination.
There does not seem to be any bond at all. Mere mention of word ‘Guarantee’ in appointment letter may not convert it to bond and there does not seem to mention of any ‘liquidated damages or compensation’ for breach of so called/imaginary bond.
That is probably why the employer/owner/HR is making phone calls.
The proof of unpaid wages of 1.5 months shall be in your favor.
Appointment letter has to be issued to all employees. Did you sign the receipt of appointment leter in back date or current date?
Service certificate has to be issued to all employees.
You owe nothing to employer; employer owes to you hence any adverse comments in BGC/reference check shall also go against the employer.
Unpaid wages is debt on employer.
You will have lot of options and employer shall have to pay and issue certificates. If you record the illegal demands of employer/thru HR they may have no other option but to tender and beg for unconditional apology.
Such unscrupulous employers, HR personnel are not fit to be left to loose around in a civilized society.
Manish Kumar
(Querist) 11 May 2014
Dear Experts,
Please find the below answers: -
Company is a Small Enterprise.
SEI CMMi Level 3 company.
Line of business is IT.
Number of employees is around 50.
My designation was Junior Software Engineer.
I was working on a Course migration project to maintain the new courses of different universities on the common platform of company's client.
I am not a member of any Employee union, trade union.
Employer didn't issued me any proof letters that they are holding my all original documents.
Yes I have retained the envelope in which my original documents were send to my hometown.
My Uncle received all my original documents which was sent to my native.
I don't have any audio/voice recorded.
when they told me not to come office I asked them to give me everything in written whatever management has taken decision but they were not ready to give me anything in written at last I told them to provide me an email so that employer can't put absconding case on me.
As at that time they had already blocked my company's email id.
So they send me below letter on my personal email:-
Hi Manish,
We had a discussion with the management and decided to accept your resignation.
Your last reported date to work was on 31st July 2013 and you don't have to report to office from 1st August 2013.
As discussed and agreed, you will be relieved from the office on 18th September 2013 and your documents will be sent over to your permanent mailing address.
This decision was taken by the company as you have not honored the signed employment contract.
Kumar Doab
(Expert) 11 May 2014
Discuss the matter in person with local Labor Consultant/service lawyer before you proceed further.
Your lawyer may opine that you as per your designation/nature of duties should be covered as ‘Workman’ as in ID Act, ‘Employee’ as in shops and Commercial Establishments Act, Small Enterprise Act……………
The employees that are not even workman, members of unions they also know how to defend their rights and do not get influenced by line managers, HR and defend their rights.
>>> The company might have registered under Karnataka Shops and Commercial Establishments Act.
You may go thru: Karnataka Shops and Commercial Establishments Act:
Sec: 1,2(e,g,h,k,w),3,4,6A, 18,21,22,27,29, 34,39
Karnataka Shops and Commercial Establishments rules.
SMALL ENTERPRISES (EMPLOYMENT RELATIONS) ACT : Sec1,2(e,f,g,j,n,), 3,
CHAPTER IV:CONDITIONS OF WORK :10,11,
CHAPTER V: WAGES, BONUS & SOCIAL SECURITY :12,13,15,16,:
CHAPTER VI:LAY OFF, REMOVAL FROM SERVICE & SETTLEMENT OF DISPUTES & CLOSURE: 17,18,
Then 21,22 and others
And determine the violations by employer.
Bonded labor has been abolished long back.
The so called Bond/service agreement/agreement/guarantee is created in lieu of which extra ordinary favor, expense, training etc…….. by company?
You should become member of IT/ITeS unions:
http://www.itecentre.co.in/
http://ithiworld.wikispaces.com/News+Update
IT/BPO Voice of India | Facebook
UNITES Professionals
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
http://www.amrc.org.hk/node/1088 CBPOP
http://www.freepatentsonline.com/article/Indian-Journal-Industrial-Relations/185430721.html
http://bpo.knowledgehills.com/Directory/BPO-Jobs/CBPOP-Centre-for-BPO-Professionals.aspx
http://www.dnaindia.com/mumbai/report-shiv-sena-forms-first-union-in-information-technology-sector-1465435
--- Trade Unions : INTUC, CITU, AITUC, BMS .............................they are more than willing to embrace the IT/ITeS employees.
Employee’s unions
>>>You have not posted that; You have signed some Bond/Service Agreement.
If you have not you should vehemently deny it.
No liquidated damages are stated in the appointment letter in Guarantee Clause and company has not demanded any amount from you in writing.
The HR has asked you to not to write to higher management.
He/she is asking for amounts from you verbally.
Does it imply that he/she is blackmailing you for his personal and private gain or for personal gain of his masters in the company?
Your lawyer may opine that a complaint against him/her can be filed and he can be made to disclose and be penalized for it.
>>> You have posted that:
---“I joined a company based in Bangalore on 28th January 2013 with a salary of 12000 per month.”
The current wage ceiling is Rs.15000/month as per def. of wages explained at website of ESIC.
Did the company provide ESIC card to you?
If NO it is violation and you can lodge a complaint with nearest ESIC office and even claim that you have been asking for it in office and employer breached the trust…………and contract.
---“ Company took all my original certificates of 10th, 12t and Btech and didn't gave me any proof”
The appointing authority has inserted a condition in appointment letter to surrender original educational certificates (which is deemed as collateral…………………and is unfair as already pointed out) and declined to issue any receipt for it.
You can claim that you have been asking for it in office and employer breached the trust…………and contract.
---“ they gave me offer letter after 4 months of joining.”
It is violation of Karnataka Shops and Commercial Establishments Act: Sec6A
You can claim that you have been asking for it in office and employer breached the trust…………and contract.
If the appointment letter was back dated to DOJ and you place current date (after 4 months of joining) then it is much better.
Moreover the company collected original educational certificates without issuing any such demand in writing (appointment letter was supplied after 4 months of DOJ ……………..as collateral ……………..say against clause 2. Guarantee period…………………mentioned by you ………..although it is unfair as already pointed out) and declined to issue any receipt for it for 4 months and even after issuance of appointment letter containing such demand.
You can claim that you have been asking for it in office and employer breached the trust…………and contract.
---“ On 1st of July 2013 I gave my resignation letter.”
You have resigned within probation period.
Hope within probation period defined by the company it has not confirmed your service in writing.
“Your last reported date to work was on 31st July 2013 and you don't have to report to office from 1st August 2013.
As discussed and agreed, you will be relieved from the office on 18th September 2013 and your documents will be sent over to your permanent mailing address.”
The company has stated everything in writing including that you shall not attend office from 01st Aug 2013 and has issued Date of relieving as 18th Sep2013……………..now as per agreed T&C inserted in appointment letter drafted by employer.
The T&C applicable should be as per:
“The company reserves the right to extend ot terminate your services by giving 15 days notice or in lieu of 15 days salary without any reason thereof.”
Here it not stated the ‘Basic Salary’ but it is stated as ‘Salary’ hence it can be construed the salary amounts to last drawn salary and accordingly it should be paid up to the dated 18th September 2013 issued by company in writing.
From your side you may claim that you always wanted to serve up to the date issued by company and earn full salary and handover the charge and complete any formality (although since company didn’t state any handover of charge/exit formality hence it was not applicable in your case).
You must not forget to mention that NO tasks were pending at your end.
“and your documents will be sent over to your permanent mailing address.”
Here company has willfully and intentionally not stated which documents although it amounts all documents applicable to you e.g. acceptance of resignation (hard copy on letterhead under seal and signature of appointing authority), service certificate, correct FNF statement, Form16 as per correct FNF statement, relieving letter ( nothing was pending at your end as last email of company as posted by you in your last post), PF number---a/c slips of entire period of service, ESIC card, NOC/NDC, payment of FNF dues by bank DD…………………….etc……………and also the original educational certificates kept by company as collateral without issuing any receipt although by issuing a written demand for it.
Whereas the company has sent in THE MONTH OF OCTOBER ONLY (as per description of AWB/ Redg. post number etc on envelope) the original educational certificates kept by company as collateral without issuing any receipt although by issuing a written demand for it.
{ You may download the date of booking, delivery etc from website of courier or
www.indiapost.gov.in
If required obtain Copy of POD containing all details from courier even if by email…….. PO including certified copy of run sheet of postman.}
----“ On 31st July 2013 evening when I said that I am going to take my resignation back then Company HR told me no don't do that tomorrow management will give some decision.”
YOU have the right to withdraw the resignation before expiry of notice period and acceptance of resignation.
Supreme Court of India
Nand Keshwar Prasad vs Indian Farmers Fertilizers ...
http://www.indiankanoon.org/doc/1452145/?type=print
---“. on 31st July 2013 evening my company email-id was blocked so that I cannot take my resignation back.”
This can be deemed as termination.
---“ On 1st August 2013 morning when I reached office I was informed by Company HR that I don't have to come office from 1st August 2013 and I will not get any salary of last 45 days i.e 16000 rs. and also I will not get any relieving or experience letter. “
This might get termed as intimidation, coercion, pressure, threat , blackmail……………….
The employee can lodge a claim the moment payment of his wages is delayed even by a day……………………………and penalty may be Rs7500/instance.
---“ When I said I want to continue in work they said no that is not possible now.”
The resignation can not be accepted before the expiry of notice period, refer above mentioned judgment of Supreme Court of India………………
---“ I was not allowed to speak with any of the higher management persons.”
This is transgression by whosoever has done it and violation of your rights and natural justice.
---“. On October month my all original certificates was sent to my hometown.”
Why these were held in captivity till October. Since company prevented to attend office and declared in writing these were otherwise also required for job hunt.
---“ I am following on email from many days to get my experience letter.”
It can not be denied to any employee and has to be supplied to all employees, by last day in office
Model Standing Orders Sec;13 to 18 may be pursued.
---“ Company HR is saying not to write any email to higher managment.”
He/she has made himself the party and may be included in the name of ‘Noticees’ by your lawyer.
If employer defaults on wages then it might have defaulted on PF,ESIC, TDS, Contribution for insurance, etc too………………………….
Employee can approach:
>>>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……………………………….within 1 year.
Salary slip to all employees duly signed by both employer and employee should be issued. Demand salary slip(s) of all months.
You may refer to: Payment of Wages Act; Sec: 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 requisite Form for recovery of wages.
>>>Inspector under –Karnataka Shops and Commercial Establishments Act, Small Enterprise Act………….
One of the duties of the Inspector is to ensure that wages are paid on time and FNF of separated employee is also done properly and in time.
>>> O/o Labor Commissioner;
The Labor Inspector might also be officiating as Inspector under Payment of Wages Act, Inspector under Karnataka Shops and Commercial Establishments Act, Small Enterprise Act…………………………..however you may lodge complaints mentioning the enactments separately.
----Employees Unions e. They may help you.
--- Trade Unions.
----RPFC thru nearest PF office.
Does the company supply PF number, PF a/c slips for each year/or E Passbook? It has to.
----ESTC Inspector in jurisdictional ESTC office………….
(Applicable to all employees drawing wages up to Rs.15000/pm as per def. of wages in the ESI Act)
--- Form16: --ITO-TDS where you file ITR and jurisdictional CIT-TDS where you company files ITR. Non issuance of Form16 by deductor (employer in your case) is offence and employer can be penalized.
----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
http://www.lawyersclubindia.com/forum/Full-n-final-settlement-100310.asp#.U0AEW0eBmXU
--ITO-TDS where you file ITR and jurisdictional CIT-TDS where you company files ITR. Non issuance of Form16 by deductor(employer in your case) is offence and employer can be penalized.
Manish Kumar
(Querist) 14 May 2014
Dear Expert,
Thank you for your advices.
Kindly refer me a local lawyer with whom I can discuss these matters and take a suitable action.
In my previous company I have not signed any bond paper, I have signed only on my offer letter.
My salary was 12k per month from which company was deducting professional tax of rs 150 and ESI of rs 210.
Company didn't provide me any ESI card even I asked so many times.
There was no PF or form 16 etc. provided.
Kumar Doab
(Expert) 14 May 2014
Mr. Kalaiselvan has advised you in this thread. If you wish you may contact him.
It is prerogative and pleasure of Mr. Kalaiselvan to be your counsel.
