Gratuity and salary
rahul
(Querist) 03 May 2014
This query is : Resolved
Hi,
From last 14 years i am working in website design and software development company. It's Pvt. Ltd. company.
Now our director decided to close down our company and ready to shift us in his another company but i am quite interested to join that company.
My company not pay me my salary from last 5 months and 2 years loyalty bonus, when i request my director he told me right now i don't have fund so i will pay your outstanding when i will get funds and it can take 6 months or 1 year.
Now i have decided to leave company, so i want to know what is my rights in Pvt. Ltd. company? Can i get gratuity? If then how i will claim for my gratuity?
Company not bifurcate salary with any allowances, from starting i received my salary without any bifurcation total CTC. Company gave me all salaries and loyalty bonus through the bank(salary account).
One of our company consultant told us that in Pvt. Ltd. farm if company not give you anything then you can't do anything, you can file any claim on directors. Is this true?
Please guide me how i will get my salary, loyalty bonus and gratuity amount from my company, i don't want do any legal case till i will get everything without any disputes but if any disputes come then can i file legal case for this?
Regards,
Rahul
Kumar Doab
(Expert) 04 May 2014
The statements of the Director to pay after 6 months/1year or as and when funds are available, are verbal or in writing?
The statements posted by you and non payment of earned wages for 5 months indicate that he does not intend to pay…………………………!!!
There is no point in trusting him.
You have worked for 14 long years with him. You might have achieved some kind of handle on employer apply it and resolve your matter in your favor.
If you can apply your rapport, goodwill and your skills of persuasion, persistence, negotiation, reasoning, and even with help of employees unions, trade unions, union leaders, influential community leaders resolve your matter in your favor.
Lawyers are trained in arbitration, mediation, conciliation and your lawyer may succeed in resolving your matter in your favor without litigation.
Try whatever you want and everything that you can.
At the same time build favorable record in writing for use at appropriate time in appropriate forum.
Discuss the matter in person with local Labor Consultant/service lawyer ASAP before you proceed further.
>>> Gratuity: Payment of Gratuity Act, 1972
Sec: 1(3) (b) (c) (3A), 2, 2A, 3, 4, 4A, 7, 8, 9
If Payment of Gratuity was/is applicable to the establishment, you should be eligible for the payment of gratuity.
If wages were not bifurcated you may claim the full salary applicable in last month of employment, as Basic.
Formulae for payment of Gratuity is;
{(Basic+DA)/26*15*No. of years of service}
Basic+DA is as per last drawn wages and if in last year you have completed more than 6 months take it as 1year.
If you have resigned you can submit FormI one month before effective date of resignation/expiry of notice of resignation, of course under proper acknowledgment with seal, signature, and date from employer.
>>> If employer has decided to close the company it has to issue notice of closure to o/o Labor Commissioner, Controlling Authority of Gratuity (that might be DLC-Gratuity). You may check at your end.
Since employer has decided to close down the company it is time to lodge/submit all claims with detail of each item for all outstanding dues well in time of course under proper acknowledgment with seal, signature, and date from employer and obtain a committement to pay the dues in writing.
If employer does not acknowledge and does not commit in writing to pay and also if does not pay immediately it shall be appropriate to approach o/o Labor Commissioner, Inspector under Payment of Wages Act, Inspector under (name of your state) Shops and Commercial Establishments Act, Controlling Authority of Gratuity with copies of the claim and settle the matter before closure of the company.
>>> Submit proper notice of resignation under proper acknowledgment and demand to supply ……………acknowledgment of resignation, acceptance of resignation, service certificate, relieving letter (with good comments and avoid without or with adverse comments), loyalty bonus, FNF statement, FNF dues by bank DD only including performance incentives, arrears (thru redg. Post),Form 16 as per correct FNF statement, PF number and account slips of all years of employment (if applicable), ESIC card (if applicable), salary slip of all months of employment, etc……………………by redg. Post only…….so as to reach you in next say……………..7 days by redg. Post only.
You may mention that FormI and postage prepaid self addressed envelope is attached for sending the reply, documents, and payments by redg. Post to you!
If employer defaults on wages then it might have defaulted on PF,ESIC, TDS, Contribution for insurance, Gratuity 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 ( name of your state) Shops and Commercial Establishments 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 UP Shops and Commercial Establishments 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.
--DLC-Gratuity
----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
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.
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 , Directors and even Consultants of the company.
The employees that are not members of employees unions, trade unions are usually not properly informed and face harassment, exploitation.
rahul
(Querist) 05 May 2014
Hello Kumar Sir,
Thank you very much for your guidance, after read your guidance i understood that only one employee can fight and i will do same as per your suggestions.
First i will try to request them to pay me my wedges and other outstanding and if they will not agree then i will take steps which you suggested me.
once again thank you very much for your guidance.
Regards,
Rahul
Kumar Doab
(Expert) 05 May 2014
If you consult a lawyer before even making a request you shall be aware how to build favorable record.
Record all transactions (audio/Visual) and submit minutes.
Don't wait too long and thus give a very long rope to this employer.
All the Best.
T. Kalaiselvan, Advocate
(Expert) 06 May 2014
You may follow the valuable suggestions rendered by expert Mr. Kumar Doab in this regard.
rahul
(Querist) 07 May 2014
Hello Kumar and Kalaiselvan Sir,
Thank you very much for your suggestion and yes i will try my best to give all records which i have but as i told you i am working from last 14 years so my relations with director like friend and because of this i have not collect pay slips and appointment letter etc...but i have all bank records in which company deposit my salaries i hope it's enough to prove everything?
Regards,
Rahul
T. Kalaiselvan, Advocate
(Expert) 07 May 2014
Yes, the salary payments through bank transactions in the form of statements as well as extracts of pass book will be a substantial proof for the purpose, you can go ahead.
Kumar Doab
(Expert) 07 May 2014
The director (employer) has to provide each document to each employee even if all employees are his friends.
The employee should watch his interest and obtain each document from employer even if employer is his friend.
>>> The salary slip has to be issued by employer to employee at least a day before the disbursement of wages and thumb impression or signature of employer and employee should be placed and copies should be retained by employer for at least 3 years.
Payment of Wages Act:Sec13A,
Minimum Wage (Central) Rules, 1950: 26(3),26(4)
>>> Such companies are covered by:
-- (Name of the state) Shops and Commercial Establishments Act and has to follow the (Name of the state) Shops and Commercial Establishments Rules and has to maintain the forms/formats/registers prescribed in the Act and rules that includes the list of employee showing date of joining etc, leave record, wages paid, attendance record, OT etc………………………
IN this Act of many states it is a provision to provide appointment letter to each employee (and employer should obtain acknowledgment from employee and keep the acknowledged copy in personnel file of employee.)
Thus in your case employer might have violated the Act and Rules by not providing the appointment letter to you.
--Standing Orders (Certified/Model)
Service Card of each employee showing date of joining etc has to be maintained.
O/o Labor Commissioner can check, obtain, examine each record in office or call it in their office.
>>> The PF account slips, ESIC card shall show date of membership (that has to be from DOJ till DOL)
>>> Form 16 shall also be evidence.
The employer is bound by law to maintain and provide each of the above.
Defend your interest.
Before he closes the company, obtain everything from employer or approach lawful authorities mentioned in previous post. The authorities have to act on even anonymous phone calls, take suo motu notice. You can obtain each document thru the authority or pursue RTI route……………………
Be Smart.
