If employers doesn't pay salary on fixed date ?
sukhmani kaur
(Querist) 26 September 2015
This query is : Resolved
Hi All,
I was working with the small company(IT Company).It was registered under shop and establishment act. And I signed a agreement where my notice period is of 2 months.
Here is my What happened with me.
I was on sick leave during that time few employees of company resigned because of Bad environment and politics in company. after my sick leave i emailed that i will join on Monday but i got an email from HR that take a rest of two more days and join us from Wednesday. When i went there they didnt allow me to sit at my seat and ask me to wait in conference room.
After that OWNER and HR both start YELLING and SHOUTING at me that i am responsible for the others resignation.
And forced me to resign and handover the projects.Only if i resign they will pay my dues.
Even my Salary of Last month was due.
So, my pending dues are of two months with them . as i survive on Salary so i resigned as per their instructions and handover all projects.
Now when i asked for my salary (2months salary)after 10 days they suddenly changed and said i have to complete all the projects first.
Also send notice to me for 5Lakh loss.
I consult with lawyer and replied to notice that they asked me to leave and forced me to resign.Even my two months salary is due.
To get my salary i was advised to to file a recovery case . i just need my two months salary that was 70k.
Company file counter claim on that for 5Lakh Loss.
Please advice my what should i do .
I know i don't have anything in written
and they have my resignation letter .
according to which i have to serve two months notice as per agreement.
But the Ex-employees (Witnesses) are ready to give their statement that the OWNER of company was culprit who planned everything and terminated me smartly.
I just wanted to know what are the rights of employee if employer failed to pay salary on fixed date.
IS Company the first who break the agreement by not paying salary on fixed date(5th of every month) or i am who forced to resign from duties .
I will attach my agreement if needed.
Please help and Advice .Thank you in advance.
Kumar Doab
(Expert) 26 September 2015
1. Salary: You may go thru the Shops and Estabs Act of your state.The salary has to be paid by 7th................on date fixed or employee can lodge the complaint the moment payment of earned wages is delayed even by a day and employer can be penalized by say Rs.7500instance.............
You might be covered by the def. of 'Employee' as in the Act and 'Workman' as in ID Act.
2. An able labor Law Consultant/service Matters lawyer/Law Firm may ask you a set of structured questions and may opine that you are covered.
If covered you can lodge complaint with:
Inspector appointed under; (Name of the state) Shops and Establishments Act
Payment of Wages Act: If the wages as per def. of Wages in the Act is upto Rs.18000/pm.This Act does not discriminate between 'Workman' and 'Non Workman'.
3. You can approach:
--- IT-ITeS female Employee's/IT-ITeS employee's unions, Trade Unions...............and unions can embrace you without bothering what was your designation...............and can represent you...
---Trade Unions e.g. CITU/INTUC/BMS/AITUC......................and these unions have embraced IT employees
---Higher officials of Dept. of Labor..............In a case at Bangalore the officials levied huge penalty of Rs.12 Lacs on IT/ITeS company for unfair termination.....
4. If it was forced resignation under coercion,intimidation,pressure then it is offense and if you have witnesses then your counsels may opine that you can lodge even police complaint..............
Forced resignation can be termed deemed termination...........
5. Notice period is part of service conditions that are governed by:
--- (Name of the state) Shops and Establishments Act and it may not be 60days....................as per the Act.
You may check the sections in the Act.
---Standing Orders (certified/Model)
Model Standing Orders :Sec:13................It is NIL during probation Period and max.30 days after confirmation of service...........
These enactments shall prevail upon any private agreement that employer has drafted and signed with employee...............
6. You can withdraw the resignation if it was forced....................and/or before acceptance.......
You may approach a lawyer specializing in Labor/service matters..................and unions.............
Rajendra K Goyal
(Expert) 27 September 2015
Well advised, agree with the expert Kumar Doab.
Kumar Doab
(Expert) 27 September 2015
Refer your PM dated 26th September2015, 27th September 2015.
I am unable to revert by PM since you have configured your PM in such a manner that I can’t reply by PM. If you send a PM and want to have some responses by PM then allow the access by PM.
You have mentioned that you were a Team Leader and matter pertains to year 2013.
The claim of 5lacs is lodged by company to snub you and seems to be counterblast. Your lawyer needs to handle it.
For proper understanding the message is reproduced below:
“Hi Kumar, Thank you. It happened 15th May 2013. I already filled a recovery case (CS37) for 115000 but on that they filled counter claim of 5 lakh Stating that because of resignation they bear a huge loss as i was working as team leader. Now my case is under mediation. I want few points so that i can at-least demand my two months salary which is pending with them. 20March 2013 to 15 may 2013. That company is now Pvt. LTd. but when i was working he was running that as a sole proprietorship under shop act. I am researching on internet about labour laws .Is agreement still valid if employer failed to pay salary on promised date.”
Even if you are at Team Leader an able labor Law Consultant/service Matters lawyer/Law Firm may ask you a set of structured questions and may opine that you are by the def. of 'Employee' as in the Shops and Estabs Act of your state and 'Workman' as in ID Act. In such case you can approach the tribunal anytime and there is no limitation as per latest judgments by Supreme Curt of India.
Unpaid wages/fruit of labor is debt on employer and employee can file for ‘Winding Up petition and complaint u/s 406,420…………………
Did you have power to appoint/terminate/sanction (not just recommend) leave or increment?
Did anyone above you have the power to cancel your recommendations?
Assuming for a moment (until your counsel confirms it) that you are not covered as 'Workman' as in ID Act your able counsel may still opine that you are by the def. of 'Employee' as in the Shops and Estabs Act of your state.
Assuming for a moment (until your counsel confirms it) that you are not covered as 'Workman' as in ID Act ……………………………….the limitation of 3 years may affect you. However you have already filed a recovery suit. The loss claimed by the company shall have to be proved. You have the irrefutable, unshakable witnesses as posted by you……………………………….that resignation was forcibly extracted from you. This should help you. Once you are able to prove that resignation was forcible extracted from you and company lodged a false claim your counsel may opine that the case shall acquire a criminal flavor and you can lodge complaint of defamation, discriminatory retaliation, falsification of record.
You need to establish you were not at any fault and company forcible extracted resignation from you.
Forced resignation can be termed deemed termination and in such case you can stake claim to reinstatement with full back wages/retrenchment compensation/notice pay of 60 days from company as inserted by company in agreement drafted by it.
You may consult an able labor Law Consultant/service Matters lawyer/Law Firm specializing in labor/service matters and also the unions and make this employer popular as 'Violator of Employee's rights'........................and litigious.................and habitual offender.
sukhmani kaur
(Querist) 27 September 2015
Hi Kumar,
Thank you for the sharing important information.
The Punjab Shops and Commercial Establishments Act,1958
As my company located in Gurgaon,Haryana.
As Per The Punjab Shops and Commercial Establishments Act,1958
16. WAGE PERIOD. –
(1) Every person responsible for the payment of wages to an employee shall fix a period in respect of which such wages shall be payable.
(2) No wage period shall exceed one month.
(3) The wages of every person employed shall be paid before the expiry of the seventh day from the date on which the wages became due.
NOTICE BY EMPLOYEE.-
(1) No employee, who has been in the service of the employer continuously for a period of three months, shall terminate his employment unless he has given to his employer 53[thirty] days’ previous notice or pay in lieu thereof.
(2) Where an employee contravenes the provisions of sub-section (1),his employer may forfeit his unpaid wages for a period not exceeding 1 [ thirty ], days.
As per my agreement it is as below:-
COMPENSATION OF EMPLOYEE
Employer shall pay employee, and employee shall accept from employer, in full payment for employee’s services under
this Agreement, compensation at the rate of Rs.35,000 per MONTH, payable once a
month for a duration stating from 21st of every month Till 20th of next month Payable On 5th Of every Corresponding
Month. Fox Example. Salary for the period of 21st July To 20 August Will be paid On 5th September.
The above mentioned salary amount can be bifurcated into various accounts by the employer, which have been
mentioned in Annexture A.
If however the employee leaves the job within the first month of joining the company he/she will not be liable to receive
any compensation whatsoever.
TERMINATION
A. This Agreement may be terminated by Employee after giving a 60 DAYS WRITTEN NOTICE to the Employer or
salary in lieu of. This notice has to be signed by the Employer in order for it to be valid.
B. After providing the 60 Days notice period the employee is fully responsible for training, educating and making the
new employee who would be joining the seat. The employee has to make the new person joining his/her seat well
aware of his/her duties and techniques he/she should be working with as well as the standards the company
follows while doing the particular work the employee is said to be responsible for. This has to be done during the
60 days of notice and the responsibility of hiring a new employee during those 60 Days of notice rests completely
with the Employer.
C. In case the employee does not serve a written notice of leaving the job before sixty days of leaving the job the
employer will confiscate the existing salary and has the right to claim from the employee for the loss borne by the
Employer to the extent equivalent to Sixty Days salary Of Employee. Under such circumstances the employer
also has the right to declare and post on national skill registry about the unprofessional attitude and written notice
of leaving the job not being served by the employee.
D. If the employer wants to terminate the agreement he has to give a written notice to the employee and give him/her
time to the extent of the salary month end to the employee.
These are the rules as per my previous company
They are already paying salary 15days Late and i didn't get salary since 20th March 2013 till 15th May 2013
So they are the first who breach the agreement and forced me to resign from my duties.even i was not allowed to sit on seat that day they already planned everything.
Can you give any reference of case which is similar to my case.so that i can go through the judgement of that case.
sukhmani kaur
(Querist) 27 September 2015
I don't have any power in that company my duties was to guide my team members.
2. Projects update to project coordinators
3. Projects assignment to team members
4. Provide solutions to other team (Sales team) as per there requirements.
5. Coordination with Boss for assignment of task.
****************
My working hours were also 10hrs
But as per Act it should not be more than 9hrs and 48hrs a week
But I have to work 60hrs a week
Even I have to work on holidays. But no overtime and as per law overtime should be paid double the wages per hour.
How can I get the information of company whether it was listed under shop act or not
Kumar Doab
(Expert) 28 September 2015
If you are covered by the def. of 'Employee' as in the Shops and Estabs Act of your state and 'Workman' as in ID Act then your counsel may opine that OT is applicable, and it can be established and you can stake a claim and establish that OT work was demanded from you but OT wage was not paid.
Rest has been discussed and explained.
IT companies are covered by Shops and Estabs Act and standing orders may also apply.
You can check with Inspector appointed under this Act.
As already posted You may consult an able labor Law Consultant/service Matters lawyer/Law Firm specializing in labor/service matters and also the unions.
sukhmani kaur
(Querist) 28 September 2015
Thank you Kumar
Last thing I want to ask
I am searching my company at below link
http://hrylabour.gov.in/page.php?module=performaFresh&process=searchHTML
but it is not showing any results.
Does it means it was not registered ?
Kumar Doab
(Expert) 28 September 2015
No.It has to 'register.Even if has not you can lodge complaint.
sukhmani kaur
(Querist) 02 October 2015
Thank you Kumar Doab For the guidance and showing the right path.
T. Kalaiselvan, Advocate
(Expert) 02 October 2015
Expert Mr. Kumar Doab has very elaborately explained and suggested you with further course of actions, I concur with his views and nothing more to add.
