About due recovery
Vinay Pratap Singh
(Querist) 30 November 2013
This query is : Resolved
I left my last mnc organization about 1 yr ago due to senior management's bad behavior related to biased performance evaluation, too much extra working hours, not following right leave policy towards me including my so many colleagues,I took stand and write a complain mail with resignation. I left organization just before completion of my 5 yrs of tenure, hence I lost my whole gratuity and bonus of that yr.
Now I keep on receiving mails from hr deptt for recovery of notice period, when its almost 1 yr passed and i moved on with another career in other city and forgot abt gratuity, however i withdraw all my PF.
What company can do maximum against me can they go legally, Or should I raised same issue and complain to each department as probably they are not aware about my reason of leaving the organization.
ajay sethi
(Expert) 30 November 2013
your appointment letter must be containing clause as to notice period . if you did not issue notice as provided in your appointment letter company can seek to recover the said amount . .
Rajendra K Goyal
(Expert) 30 November 2013
For fruitful advise your appointment letter need to be seen regarding notice period and conditions in which notice is not necessary. Consult local lawyer and show him all the documents.
prabhakar singh
(Expert) 30 November 2013
At this juncture you have only one option to deny your liability to pay although you did wrong in not honoring your employment terms ,they may sue you for dues under employment terms,but possibility is little.
Kumar Doab
(Expert) 30 November 2013
Learned experts have given valuable advice. Kindly follow it.
You may show the standing orders applicable to the establishment and extended to your designation , appointment letter to your lawyer and proceed under expert advice of your lawyer.
Did the company supply the correct FNF statement showing computation of payables by company to you and payables by you to company?
Does the correct FNF statement show net amounts payable by you?
You have posted that:
-----"I left organization just before completion of my 5 yrs of tenure, hence I lost my whole gratuity “
If you have completed 190/240 days in 5th year and if your establishment works for 5/6 days in a week you should be eligible for payment of gratuity.
If you are eligible for payment of gratuity and if the establishment has not issued Notice of determination of gratuity to you with a copy to controlling authority of gratuity and then you should be eligible to get payment of gratuity along with interest @10%/pa for the delayed period.
You may submit formI. Company should disburse gratuity on its own within 30 days.
----"Now I keep on receiving mails from hr deptt for recovery of notice period'
The notice period of resignation is stated in standing orders (certified/model) applicable to the establishment and extended to the designation of the employee. The notice period stated in standing orders shall prevail upon the notice period stated in private agreement signed by employer with employee e.g contract of employment/appointment letter. If notice period in standing orders applicable to the employee is 1 month it can not be 2 months in appointment letter.
Employer himself is responsible for faithful observance of standing orders.
Employee is bound and under obligation to display standing orders at a conspicuous location in company/notice board, and supply the certified copy to the employee against a nominal fee say Rs.10/-.
Employee or any one can obtain the certified copy of the standing orders applicable to the establishment from certifying officer (CO) against a set fee say Rs.3/page. The Certifying Officer may be DLC in o/o Labor Commissioner at the location of redg. office of the company.
Standing orders and rules that are statutory and have statutory force.
The Model Standing Orders are as per statue and have statutory force and shall prevail upon any private agreement that employer signs with employee be it appointment letter...................or contract of employment.......................or service agreement........................or Bond....................or whatever it is.
Once the standing orders framed by employer are certified they have the force of law. As against them conditions of service contained in appointment letter or contract of employment do not have statutory force.
Once there is a conflict between the provision of law or an instrument having force of law and the contract entered into between the parties, the former will prevail.
Therefore you may examine the standing orders and check if these were applicable to your designation.
Notice period is also stated in shops and commercial establishment act of the state.
If your establishment is commercial you may look into the clause on ‘Notice of dismissal’ applicable in state of your location.
The designation alone does not decided employee shall be covered as ‘Workman’ as in ID Act and as ‘Employee’ as in shops and commercial establishment act of the state.
Your lawyer may ask you a set of structured questions and may opine you shall be covered or not.
The employer may adjust notice pay in FNF statement and should supply the correct FNF statement to employee for verification and acceptance.
Did your employer provide you the copy of FNF statement?
Assuming that standing orders, shops and commercial establishment act of the state are not applicable in your case then employer may have to proceed for recovery of dues as per correct FNF statement which it may not..................................
-------“ hence I lost my.................................... and bonus of that yr."
If it is statutory bonus it should be paid before 30th Nov else employer can be penalized.
If it agreed bonus as per bilateral agreement in the form of performance bonus, CTC annexure etc it should be paid.
You may submit details of payables by company to you and payables by you to company and if any amounts are still payable by company to you then you may demand it.
If any amounts are still payable by you to company then you may pay and close the matter forever.
Employee should also honor the contract it has signed with employer.
