Not working due to delayed salary
Adil
(Querist) 04 April 2014
This query is : Resolved
Hi,
I am working in Lucknow for a Gurgaon based education company. The company has been paying delayed salaries since last 2 years. I am getting around 30k in hand. We as employees have accepted it and are still working. Lately, I thought and working for such a company even after not getting paid on time is useless hence I restricted my working (Usually work from home as company did not pay expenses and salaries on time). Recently company officials visited the site and found a need to change the employee (ME) with another person as I was not giving my 100%.
They sent me a performance notice. My questions are as follows:
1. Can I file a criminal/civil case against this?
2. Is it ok to not work if I don't get paid on time?
3. Can company terminate me on performance grounds?
4. Is there I way I can get a stay on my FnF and stay on hiring of a new person at my place or stay on the work (The number of schools I used to look after) so that till the matter is sorted out, no one else can take charge of the clients assigned to me?
5.Should I resign or just wait for them to terminate me?
6. There are others also who are facing the same issue. They can come along with me however they are my reportees.
Till date I have not been paid for Feb 2014. Kindly help me on this as it is really important.
Dr J C Vashista
(Expert) 04 April 2014
Did you ever issued demand notice for your salary to be paid by due date?
Engage local lawyer to make out case for you and contest.
Adil
(Querist) 04 April 2014
Thanks for the reply.
No since I was afraid of loosing my job if I ask too many questions I did not but I do have documents where I have constantly asked/requested to provide update on salaries of my reportees but to no avail. The company released the salary when it wanted to.
Also, I would request someone to reply me question wise. Question number 4 is very important.
Thanks again for all your help and suggestion.
ajay sethi
(Expert) 04 April 2014
company can terminate your services on performance grounds . if company does not pay salary on time better resign . you wont get a stay on company employing another person
Rajendra K Goyal
(Expert) 04 April 2014
Better search a new job, company seems not performing good, before it terminate you join new job.
Kumar Doab
(Expert) 04 April 2014
This employer is unworthy of being employed with. It believes that even if does not pay wages employee(s) have to work as per its policies and deliver performance too…………………………
You have posted that you did not raise demand notice for payment of earned wages.
Did you reply to performance notice?
Submit a carefully structured reply based on facts and explain your performance.
Avoid mingling and mentioning unwarranted issues and emotional outbursts.
Apparently company has included you in ‘Verbal Challenge’, PIP……………………
Performance is dependent on various factors and is not that easy to prove.
Non Payment of wages can be one of the factors affecting performance.
The company has made up its mind to separate by way of ‘Termination’. There may be terse phone calls and line managers/HR may turn zealous. Better record all for use , if required, at appropriate time in appropriate forum. You may be called to HO and asked to resign. Better record this transaction too.
Once you have evidence and are out of meeting room submit the minutes under proper acknowledgment, addressed to appointing authority, MD.
It is your call now.
It shall be better if you firm up your next venture AS AP.
You may also by a separate communication submit your grievances related to wages, reimbursements under proper acknowledgment with a copy to you. Remain gentle and amiable.
If you, reprotees have worked for OT lodge claim AS AP and retain proof of having been asked to do OT and having worked for OT. Submit all claims for reimbursement of course under proper acknowledgment.
If you are young, experienced, skilled try to be with some organization having good HR practices, or appear for some ventures where you shall be eligible and shall have some job/future security as well.
It is assumed that you are a Manager/Supervisor. Still you may approach a competent and experienced labor consultant/service lawyer with copies of job advt, job application, interview call letter, selection letter, offer letter appointment letter, HR policy/service rules and regulation/all policies referred to and mentioned in appointment letter, standing orders applicable to the establishment (Model/Certified) and extended to your designation, ‘Verbal Challenge’, PIP policy………………………………..show all records and give inputs in person.
Your lawyer may opine that you are covered as ‘Workman’ as in ID Act and as ‘Employee’ as in Uttar Pradesh Shops and Commercial Establishments Act (U.P. Dookan aur Vanijya Adhisthan Adhiniyam, 1962)………………………..
Designation alone does not decide employee shall be covered by these enactments or not.
If your lawyer opines that you are not covered then you may have to approach civil court.
Apply your managerial mind and let your reportees come in front and create the noise!
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.
All affected employees can submit joint claim for recovery of wages.
>>>Inspector under U.P. Dookan aur Vanijya Adhisthan Adhiniyam, 1962:
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.
You may go thru; Sec: 2(4)(6)(7) (10) (13A)(18)
Sec:3,6,7,9,10,12,13,18,19,20,30,32,39
And also
The U.P. Dookan Aur Vanijya Adhishthan
Niyamavali, 196352
AND
Varios forms and formats prescribed under it.
>>> 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.
If you have been threatened with termination or are not being paid and you are covered by the enactments as workman/employee, you can raise a dispute/industrial dispute now!
This may become the injunction as desired by you.
----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 your ITR
CIT-TDS (jurisdictional) where company files ITR
--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
Adil
(Querist) 05 April 2014
Thank you Mr. Kumar Doab. I appreciate your time for writing a detailed answer to my question. Based on your revert, I feel that there is not much in my hand. Had there been anything which could be used to save my job I would have done that however, right now I think I would just resign and hunt for a new one.
Kumar Doab
(Expert) 05 April 2014
If you are contemplating to resign don't resign with immediate effect.If you do so the company shall adjust notice pay and square off your dues.
It is likely that your dues may be delayed.
Submit notice of resignation addressed to appointing authority, MD, under proper acknowledgment and mention notice period tendered by you and last day/date in offcie. Mention that no tasks are pending at your end and routine duties be assigned that can be completed on day to basis within and up to expiry of notice period/last day in office and to whom you should handover the charge. Request to supply the acknowledgment of notice of resignation, acceptance, correct FNF statement for verification and acceptance by you, PF number-a/c slips for whole tenure of service, ESIC card, Form16 as per correct statement, Gratuity (if applicable), service certificate, relieving letter,………………….be supplied to you up to and within last date in office by redg. Post.
You have the option to mention the demand of resignation, non payment of wages as a reason to resign………………………………….if it suits you.
Don't forget to reply to performance notice. Or the company may treat NO Reply as deemed acceptance and resort to termination.
Submit all claims of OT, reimbursement etc under proper acknowledgment and try to obtain written confirmation of having received it from officials…………..
Employee should be tactful and smart.
In such situations employee preferably consult a lawyer handling service matters.
T. Kalaiselvan, Advocate
(Expert) 05 April 2014
I think Mr. Kumar Doab has given a proper and elaborate opinion and suggestion on the subject, nothing more to add.
