With out any notice terminated and stopped salary
ganesh yadav
(Querist) 03 December 2013
This query is : Resolved
Dear sir/madam,
I was worked as a RM in stockbroking office since 5-07-2011(visakhapatnam andhra pradesh),with out any information they stopped my salary for the month of march2013,that time i asked to my branch manager why i didnot got my salary he replied i dont know,i waited for 1 weak i did not get any kind of reply, then i send email(company mail id) to all of my heads including MANAGING DIRECTER regarding salary dt 13-04-2013,after 3 days they blocked my mail id and terminated, that time one of my friend suggested me give a complaint in labour office, i went to labour office given complaint, labour officer sent notice to head office and local branch office, labour officer asked about my salary but they said we are not ready to give salary at the time of joint meeting dt18-06-2013,
after that i have approched advacate i explained every thing adv said we will file a case againest company, but my bad time from that time for samikeandhra purfuse all govt employees on strike,from last 3 months iam asking my advocate about my case he said we r strike please wait for some time,
Dear all please provide me suggetion what i have to do now,
arunprakaash.m.
(Expert) 03 December 2013
Your advocate has taken right course of action. If there is any contract between you and your employer for giving notice of termination then according to that contract notice should be given. Otherwise a three months prior notice or three months salary in liew of three months notice should be paid. Brajonath Ganguly v cental inland water authority
BAALASUBRAMANNYAMM
(Expert) 03 December 2013
Now, in Seemandhra, strike has been called off and hence you can pursue the case now and remind the Labour Officer, once again.
Kumar Doab
(Expert) 03 December 2013
You have approached your labor consultant/service lawyer and your able lawyer would know how to defend you.
At such moment employee should not panic, should organize all the evidence and record and provide inputs to his lawyer.
Employee should look for other avenues that might be available to generate funds and must attempt to settle an enterprise that may come handy in future.
Employee may utilize the time to add to his qualification.
Your sector has been resorting to terminations and it is probably due to slump and crunch in business.
>> This establishment has how many employees?
Probably a RM stands for 'Relationship Manager' and this may be covered under ID Act and Andhra Pradesh Shops and Commercial Establishments Act.
What was nature of duties?
Has the employer ever issued any stinkers, show cause notice, verbal challenge, PIP etc to you and has it stated any reason in order of termination/ Was your service confirmed in writing?
What is the usual pay day in your case?
The employer can be penalized for violation of payment of wages that may be Rs.7500/instance....................
The Labor Inspector ( in local o/o Labor Commissioner) at your location may also be the Inspector under Payment of Wages Act, Andhra Pradesh Shops and Commercial Establishments Act, still you may lodge complaints under the different enactments separately and let the violations/offences under each enactment be proved and fined for separately and let this employer find authorities under various enactments and statues breathing down his neck.
You may lodge compliant for non payment of wages for last month till 13th of the month ( prove that termination order was issued and supplied later than pay day and attach copies of your email informing non payment of wages), and also contest the termination order.
>>The designation alone does not decide employee would be covered as ‘Workman’ as in ID Act, as ‘Employee’ as in Shops and Commercial Establishments Act.
Your lawyer may ask you a set of structured questions and can opine that you would be covered or not?
The company would scream that employee was not a workman, the relationship is that of ’Master and Servant’, Specific Relief would apply and contract of personnel service can not be enforced in a court of law.
However your lawyer would know how to handle it.
Has it displayed the standing orders applicable to it (Certified/Model) and Andhra Pradesh Shops and Commercial Establishments Act, Payment of Wages Act etc................applicable to it at a conspicuous place/notice board?
Employer is bound to supply the certified copy of standing orders to employee against a reasonable fee say Rs.10/ and also the certified copy of all other rules, policies applicable to the employee e.g; service rules, service codes and regulations, HR policy, exit policy, severance policy, FNF policy, leave policy, productivity bonus, incentives etc.................
Does the employer keep all such policies in knowledge domain that is accessible by employee’s e.g HR portal?
Employer should keep all policies in knowledge domain and should not act as street magician and must not produce things from thin air.
You may demand in writing under acknowledgment the certified copy of the standing orders applicable to it (Certified/Model) and affirm to tender the fee if any and other policies so as to reach you within next say................3 days by Redg. Post only and state that you are willing to supply the postage prepaid/self addressed envelope for sending the Redg. Post if company demands it in writing.
>> The establishment might have registered under Andhra Pradesh Shops and Commercial Establishments Act.
This enactment is so employee friendly and is easy to understand.
You may at once in person and in writing (under proper acknowledgment) demand certified copy of the appointment letter and termination letter from Inspector under this Act as employer is bound to submit both to the Inspector within 3 days.
This employer might have defaulted on payment of contributions to Insurance, PF, ESIC, TDS and you may approach Inspector under this Act who can enter the premises and check records and as well copy and as well call records/forms/registers in his office.
The day for payment of FNF wages including notice pay for termination is last day in office or within next 2 days.
Obtain certified copies of the records and prove the violations by this employer and him eligible for the award of penalty, punishment, imprisonment...........................
>> Andhra Pradesh Shops and Commercial Establishments Act
34. Compulsory enrolment of employees to Insurance cum savings scheme
35. Responsibility for payment of wages
36. Fixation of wage period
38. Time of payment of wages: (2) Where the service of any employee is terminated by or on behalf of the employer the wages earned by such employee shall be paid before the expiration of the second working day from the day on which his employment is terminated.
47. Conditions for terminating the services of an employee, payment of service compensation for termination, retirement, resignation, disablement, etc., and payment of subsistence allowance for the period of suspension :-
(1) No employer shall, without a reasonable cause terminate the service of an employee who has been in his employment continuously for a period of not less than six months without giving such employee atleast one month s notice in writing or wages in lieu thereof and in respect of an employee who has been in his employment continuously for a period of not less than one year, a service compensation amounting to fifteen days average wages for each year of continuous employment:
Provided that every termination shall be made by the employer in writing and a copy of such termination order shall be furnished to the Inspector having jurisdiction over the area within three days of such termination.
48. Appointment of authority to hear and decide appeals arising out of termination of services :-
54. Conditional attachment of property of employer :- (1) Where at any time after an application has been made under sub section (1) of Section 51, or where at any time after an appeal has been filed under Clause (b) of sub section (1) of Section 53, the authority referred to in those sections is satisfied that the employer is likely to evade payment of any amount that may be directed to be made under Section 51 or Section 53, the Authority, except in cases where it is of opinion that the ends of justice would be defeated by the delay, after giving the employer an opportunity of making representation may direct the attachment of so much of the property of the employer as is in the opinion of the authority sufficient to satisfy the amounts which may be payable under the direction.
(2) The provisions of the Code of Civil Procedure, 1908 (Central Act 5 of 1908) relating to attachment before judgment under that Code, shall, so far as may be, apply to any direction for attachment under sub section (1).
59. Powers and duties of Inspectors :- An Inspector may, within the local limits for which he is appointed,
(a) enter at all reasonable hours with the assistance of such persons in the service of the Government or any local authority as he thinks fit, any place which is or which he has reason to believe is used as an establishment;
(b) make such inspection of the premises and of any registers or other records and take on the spot or otherwise evidence of such persons, as he may deem necessary in the manner prescribed;
(c) exercise such other powers as may be necessary for carrying out of the purposes of this Act.
61. Penalties: (1) Any employer who makes any false or incorrect statement............................ with imprisonment for a term which may extend to three months and with a fine which shall not be less than.....................
68. Maintenance of registers and records and display of notices, etc
(2) Every employer shall, on demand produce or cause to be produced for inspection by an inspector all registers, records, and notices required to be kept by or under this Act.
(4) Every employer shall give an order of appointment to his employee in the establishment before such employee joins the service and shall also furnish a copy of such order to the Inspector having jurisdiction over the area, within three days of issue of each such order
>> Model Standing Orders; 13. Termination of employment.--(1) For terminating employment of a permanent workmen, notice in writing shall be given either by the employer or the workmen - one month’s notice in the case of monthly-rated workmen............
(3) Where the employment of any workmen is terminated, the wages earned by him and other dues, if any, shall be paid before the expiry of the second working day from the day on which his employment is terminated.
17. Liability of 17[employer].--The [employer] of the establishment shall personally be held responsible for the proper and faithful observance of the standing orders.
18. Exhibition of standing orders.--A copy of these orders in English and in Hindi shall be pasted at [*****] and on a notice-board maintained at or near the main entrance to the establishment and shall be kept in a legible condition.
>> Payment of Wages Act; (Applicable to all employees drawing wages as per def. of wages as in the Act up to Rs.18000/pm). (Agitate for non payment of last month wages and others and succeed in getting a penalty levied)
2. Definitions. 3*[(vi) "wages" means....................................
(d) any sum which by reason of the termination of employment of the person employed is payable under any law, contract or instrument which provides for the payment of such sum, whether with or without deductions, but does not provide for the time within which the payment is to be made;
3. Responsibility for payment of wages.-
4. Fixation of wage-periods.
5. Time of payment of wages.
13A. Maintenance of registers and records: (1) Every employer shall maintain such registers and records giving such particulars of persons employed by him, the work performed by them, the wages paid to them, the deductions made from
their wages, the receipts given by them and such other particulars and in such form as may be prescribed.
(2) Every register and record required to be maintained under this section shall, for the purposes of this Act, be preserved for a period of three years after the date of the last entry made therein.
17A. Conditional attachment of property of employer or other persons responsible for payment of wages.
>> There are threads indicating that employees have been contemplating to lodge criminal complaints u/s 406, 420.........................and approach employers as creditors treating unpaid wages as debt on employer.
http://www.lawyersclubindia.com/forum/details.asp?mod_id=72011&offset=1#.UNRXofLZ1JI
>> IN a similar case involving another stock broking company the termination order was called back.....................
http://www.lawyersclubindia.com/forum/Suit-claiming-damages-and-criminal-case-60347.asp#.Up3HJ9IW1MA
You may note from this thread that Inspector and Chief Inspector did not agree with the contentions of the employer that employee is not a workman.
They provided relief in a speedy manner.
>> The employee can approach:
----Lawyer/Law firm: The lawyer would know how to proceed in such a case and shall defend you.
----Trade Unions: The leaders know the precise ways to handle such employers.
Trade Unions are willing to embrace employees from various sectors and create unions.
In state of Kerala and Tamilnadu they have created separate unions for employees of Private Life Insurance companies and as per certain publications have succeeded to get the mass scale terminated employees reinstated with full back benefits.
----o/o Labor Commissioner; Approach State or Central as per ‘Appropriate Government ‘ as in your case.
----Inspector under Payment of Wages Act
---- Inspector under Shops and Commercial Establishments Act
----Police
----RPFC
----Jurisdictional ESIC office
----ITO-TDS where employee files ITR and jurisdictional CIT-TDS where employer files ITR
----Civil Court
Support your able lawyer and have faith.
Your lawyer would know how to pull this employer and drill sense into the heads.
Your lawyer would also know how to open many fronts.
Please keep this thread updated.
Kumar Doab
(Expert) 03 December 2013
Mr. Bala Subrahmanyam,
So nice of you.
Thanks and Regards
Kumar Doab
(Expert) 03 December 2013
@ Ganesh Yadav,
If the company supplies FNF statement remember to consult your lawyer and decline to accept it in writing under proper acknowledgment.
As per Andhra Pradesh Shops and Commercial Establishments Act, company is liable to pay compensation @ 15 days wages/year of service too.
