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Good Boy (None)     14 May 2013

Can company ask for return of gift

Q: Can company ask for return of gift, given to employee for last year’s performance reward?

Background: my company gifted me a two-wheeler as gift incentive for outstanding performance for last financial year. Company purchased it on loan from bank. Loan was in favour of company not me. This based on partial down payment 60:40 ratio (60 company: 40 me) and monthly installment of 80:20 ratio (80company: 20 me). However, vehicle is registered under company’s name. Registration is done in “State X’ (company’s head office). I lived in ‘State Z’ (branch office). Company delivered vehicle to my state. I paid 40% of my contribution of down payment by my personal chqe in company’s favour and company deducting certain amount from my salary every month toward contribution of monthly payment. On paper they said that they will transfer vehicle to my name when loan period get over. I have proof of cheq, offer papers of gift. Before handing over to me company took my sign on agreement paper that I’ll pay my contributions regularly for entire loan period, and I have to keep vehicle in good condition as it is company’s property till transfer to my name.

However, this year’s performance is below last year, due to unavailability of goods etc. Now company is asking me to return two-wheeler, for which I made significant contribution. I want to know what my options are. In addition, what gift laws say about this in my case? What should I do, keep the vehicle, which is register in company’s name in ‘State X’ or return it. Recovering my money from company is not easy. In addition, what are company’s options? What legal actions can they take and what should my answers? My past career / record in company is very good but regular recalling is hampering my work and I am in mental distress also. For last many days, I did not sleep properly and feeling physically exhausted due to this behavior of company.



Learning

 10 Replies

Kumar Doab (FIN)     15 May 2013

 

 

 

The question arises why should an employee fall for such a scheme???????????

Employee should always consult elders in the family, competent and experienced well wishers, lawyer/law firm before signing on the dotted line.

 

Is it not possible that you continue to make payment of your portions and company for its portion/

Or Company may refund payment collected from you + interest @ loan rate to you?

 

 It is as simple as that company offered vehicle to you with some conditions????

 

You have posted that:

 

-------“my company gifted me a two-wheeler as gift incentive for outstanding performance for last financial year. Company purchased it on loan from bank. 

I paid 40% of my contribution of down payment by my personal chqe in company’s favour and company deducting certain amount from my salary every month toward contribution of monthly payment. On paper they said that they will transfer vehicle to my name when loan period get over. I have proof of cheq, offer papers of gift. Before handing over to me company took my sign on agreement paper that I’ll pay my contributions regularly for entire loan period, and I have to keep vehicle in good condition as it is company’s property till transfer to my name.

 

You have posted a few extracts from the agreement you have signed with the company, however language of the full agreement should be carefully studied.

 

At which location the agreement was signed, your city of the city of HO of the company and what is the town mentioned in the agreement?

What is the location of jurisdictional courts mentioned in the agreement?

 

Do you have the certified copy of the agreement? If yes you need to show it to a lawyer at your location.

 

------“Loan was in favour of company not me.

 

This should imply company took loan to gift the vehicle to you.

As per your private agreement with the company, you have partly paid the cost.

 

Is there any provision in the agreement that in case of a situation………………either of the party can make balance payment to own the vehicle?

 

 

------“I have proof of cheq, offer papers of gift.

Has the company issued any acknowledgment of the cheque? Do you have copy of the other agreement signed by you? If not you should demand it claiming that despite your representations in office this was never supplied to you.

 

company deducting certain amount from my salary every month toward contribution of monthly payment.

Under what head this amount is deducted? Is it shown in salary slip issued to you?

 

-------“However, this year’s performance is below last year, due to unavailability of goods etc. Now company is asking me to return two-wheeler, for which I made significant contribution. 

 

What is the link between performance and vehicle and its recall by company?

 

Company is owner of the vehicle. It can apply its rights as owner.

Vehicle is hypothecated to bank. If you do not pay your contribution or if company does not pay is contribution, bank can proceed to take possession.

 

 

-----“ Now company is asking me to return two-wheeler

 

 

Have you raised your demand and staked your claim on amounts paid by you?

 

 

------“I want to know what my options are. 

 

Show all docs to a lawyer and proceed under expert advice of your lawyer.

 

Let all representations be drafted and structured by your lawyer.

Are you a member of any trade union? In such matters sometimes trade union succeed to drill sense into the heads. Your lawyer and trade union can opine on the merits of lodging a complaint with o/o Labor commissioner.

Good Boy (None)     16 May 2013

 

Thank You very much sir, spearing you precious time in answering my questions. As I am in ‘make or break situation’ your suggestions certainly helped me. Here is my reply.

 

[1]At which location the agreement was signed, your city of the city of HO of the company and what is the town mentioned in the agreement?

 

►HO city

[2]What is the location of jurisdictional courts mentioned in the agreement?

 ► HO city

[3]Do you have the certified copy of the agreement? If yes you need to show it to a lawyer at your location.

►No

 

[4]------“Loan was in favour of company not me.

 This should imply company took loan to gift the vehicle to you.

► Yes, it is clearly mentioned in offer letter & photos

[5]As per your private agreement with the company, you have partly paid the cost. 

Is there any provision in the agreement that in case of a situation………………either of the party can make balance payment to own the vehicle?

► 100% NO 

 

[6]------“I have proof of cheq, offer papers of gift.

Has the company issued any acknowledgment of the cheque?

 

►No direct acknowledgement. I have passbook statement, which shows cheque credited in company’s name.

 

[7]Do you have copy of the other agreement signed by you? If not you should demand it claiming that despite your representations in office this was never supplied to you.

 ► No copy. As it was last minute arrangement by company.

[8]“company deducting certain amount from my salary every month toward contribution of monthly payment.

Under what head this amount is deducted? Is it shown in salary slip issued to you?

 

 ►It is under staff advance, but since then company stopped sending salary slip, either hard copy or by email.

[9]-------“However, this year’s performance is below last year, due to unavailability of goods etc. Now company is asking me to return two-wheeler, for which I made significant contribution. 

 [10]What is the link between performance and vehicle and its recall by company?

► NO Link. As company never mentioned, verbally or in written that this incentive is next year performance based. Every year company is distributing certain performance based gifts or cash. I won many in last 7-8 years. But this was absolutely new scheme--- part sharing.

 

[11]Company is owner of the vehicle. It can apply its rights as owner.

Vehicle is hypothecated to bank. If you do not pay your contribution or if company does not pay is contribution, bank can proceed to take possession.

 

►Yes absolutely and my major concern is this only.

 

 

[12]-----“ Now company is asking me to return two-wheeler

 

 

[13]Have you raised your demand and staked your claim on amounts paid by you?

►Yes. But got only vague answers. Looking at settlement of ex employees we understands it is nearly impossible to get money from company.

 

 

------“I want to know what my options are. 

 

[14]Show all docs to a lawyer and proceed under expert advice of your lawyer. 

Let all representations be drafted and structured by your lawyer.

►OK sir.

 

[15]Are you a member of any trade union?

►Yes sir. This year’s renewal is pending from union side.

[16]In such matters sometimes trade union succeed to drill sense into the heads. Your lawyer and trade union can opine on the merits of lodging a complaint with o/o Labor commissioner.

Union will make it street fight, and I am avoiding that situation.

 

In light of above clarifications, as an experienced person, what you will suggest , should I return bike or fight? As I have no fault in performance, it was due to non supply of goods. Company delivered vehicle to my state, is gift laws  any help here? Or what should I ask to company for compromised negotiation? It is a matter of prestige rather than money/ gift. Till date there is only one email from company, otherwise from chaprasi to VP , all are asking it verbally.

 

 

Kumar Doab (FIN)     16 May 2013

 

 

 

Submit a carefully structured and drafted representation to the good offices of appointing authority, MD, Chairman, Company Secretary, try your level best to resolve amicably and in the process build some favorable written record, and also demand:

 

--Certified copy of the private agreement on which your signatures were obtained and claim that this should have been supplied to you on the spot but has not been supplied to you despite your subsequent representations in office. If you have some record of representations, narrate it, and cite the name/designation/dept/name of company/address of company personnel mentioning dates/phone numbers/emails/in person visits etc…..

 

--Acknowledgment of all cheques, down payments (mention name/designation/dept/name of company/address of company personnel to whom cheque was sent and the one who received it and also the one who sent it for encashment, cheque number, date, amount, name of bank, of encashment etc)……….claiming the same has not been supplied to you despite your representations in office……………..

 

Request them gently to instruct one and all not to force you or coerce you or to resort to forceful occupation of the vehicle, for which you have paid amount of Rs………..+ bank’s loan interest + vehicle maintainance charges ( keep the bills)  + .depreciation as you are going to be the owner after completing your contribution over period of time……….

 

If some negotiation is possible on refund of your monies, you may carefully handle it and minute it carefully to suit you in the long run.

 

--All pending salary slips which have not been supplied till date, and conclude that the company stopped supplying these after the agreement was signed by you…………. claiming the same has not been supplied to you despite your representations in office……………..

 

Payment of Wages Act (applicable to all employees drawing wages up to Rs.18000/pm as per def. of wages in the act) specifies the pay slip be provided and be signed by employee, and record is maintained for three years…..You may also go thru sections of deduction of advances, loan etc( Sec7,8,10,12, 12A )……….and you can agitate for claim of 100% ownership of the vehicle by company (Sec 15) …………..

 

6. Wages to be paid in current coin or currency notes.- All wages shall be paid in current coin or currency notes or in both: 5*[Provided that the employer may, after obtaining the written authorisation of the employed person, pay him the wages either by cheque or by crediting the wages in his bank account.]

 

13A. Maintenance of registers and records.

 

5*[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.]

 

 

You have posted that :” It is under staff advance, but since then company stopped sending salary slip, either hard copy or by email.”

 

Since no advance has been paid to you, how come the amount is posted as advance? You may demand an explanation/illustration in writing and Company should reply in writing.

 

 

You have posted that:

 

----“ NO Link. As company never mentioned, verbally or in written that this incentive is next year performance based.”

 

You may demand an explanation/illustration in writing and Company should reply in writing, why the demand of returning the vehicle………….

 

---“ But got only vague answers.’

Escalate to good offices and rephrase your questions and demand a specific and correct reply, since you have paid significant amounts, and attempt to conceal may entitle you to raise issues for being defrauded……..

 

 

---“this year’s renewal is pending from union side.’

Obtain the renewal as ap.

If acceptable and workable at your end you may think upon putting up the issue before works committee, grievance redressal committee………etc

 

 

 

The union can take up the matter of Ex. Employees and rake up the issue, with management, o/o Labor Commissioner………….

 

The Ex Employees may succeed to rake up the issue under Sec: 16. Single application in respect of claims from unpaid group. Of Payment of Wages Act or for Unpaid Wages under Shops and establishments Act. One of the duties of Inspector under this Act is to ensure that wages/payout to separated employee are paid in time…..

 

A letter/memorandum from the union may act as deterrent and fetch relief for ex. Employee as well.

 

----“Company delivered vehicle to my state”

 

You may succeed to agitate at your location.

 

----If you are apprehensive of forceful recovery you may approach police, court of law for injunction.

 

You may also succeed to claim with bankers that company has seconded the vehicle to you against payments, proof of which is with you………..

 

 

Explain the matter to good offices and mention specifically that a written reply and pending documents be supplied to you.

 

All Ex-employees can expose the company before media, Labor officials etc…………

 

If your representations to good offices do not yield any relief, then your options are lawful authority, court of law.

If good offices do not act as unbiased Parent, court and state will act as court and state is “Parens Patriae” : Parent to the Nation.

 

Or you may swallow the loss and let the practice continue.

 

Let your lawyer’s opinion: who has seen all your docs and has analyzed the merits in your inputs be final on all points discussed in this thread.

 

Valuable advice of learned experts/members is sought. 

Good Boy (None)     17 May 2013

Kumar sir, thank you again for detail & in depth analysis. this helped me to rethink entire issue as we were unaware about many legal points. I am still in the company but situation is not better than last month. if you can add any more points please update here. 

Kumar Doab (FIN)     17 May 2013

 

Approach a competent and experienced labor consultant/service lawyer with copies of all docs, give inputs in person, analyze the merits, choose the most suitable option  and proceed under experts advice of your lawyer.

Good Boy (None)     01 June 2013

kumar sir, as suggested by you I engaged a lawyer who is advising me very nicely & wisely. he asked me to let company to throw first stone. I am following his advice. only thing is now an unknown person, claiming some transporter, is asking to handover vehicle to him on behalf of company. another thing is top bosses of company are exchanging emails within them, with cc to me, conversing that within some time limit if i didnt return 'GIFT', they should stop my all expenses & this month salary (even after doing full month work and expenses due from last december + due P.L.).

no email is directly addressed me. content of the email also mentioned to lodge police case in HO city, ignoring the fact i paid a huge sum against my own GIFT. 

 

Also they mention about to terminate me,if i didnt follow this dictate. i didnt handover bike on specified time, so should I treat myself as terminated? please suggest.

Kumar Doab (FIN)     02 June 2013

Lawyer who has seen all of your documents, gone thru your inputs and has analyzed the merits is best placed to advice you. On line discussions have its own limitations.

Trade unions also may raise the issue effectively.

For pay slip in addition to Payment of Wages Act you may also refer to:

Minimum Wages Central Rules:

26. Form of registers and records: sub section 1---4

And demand all pay slips, by redg. post.

You have posted that:

---- “only thing is now an unknown person, claiming some transporter, is asking to handover vehicle to him on behalf of company. “

How come this transporter comes in picture? Has the company sold the vehicle to him?

Probe him and find out. Record the conversation.

Ask your lawyer if it would be possible to obtain injunction since you have paid considerable amount for the vehicle.

-----“another thing is top bosses of company are exchanging emails within them, with cc to me, conversing that within some time limit if i didnt return 'GIFT', they should stop my all expenses & this month salary (even after doing full month work and expenses due from last december + due P.L.). no email is directly addressed me. content of the email also mentioned to lodge police case in HO city, ignoring the fact i paid a huge sum against my own GIFT. 

You may go thru sections on Payment of Wages in IESO Act/Model Standing Orders/Standing Orders of the company/Payment of Wages Act/Shops and establishments Act of the State………………….

And

Deduction of Wages e.g. in

 

- 7. Deductions which may be made from wages. :

the wages of an employed person shall be paid to him without deductions of any kind except those authorised by or under this Act.

1*[Explanation I].--Every payment made by the employed person to the employer or his agent shall, for the purposes of this Act, be deemed to be a deduction from wages.

-12.Deductions for recovery of advances.

- 12A. Deductions for recovery of loans.

- 15. Claims arising out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claims.

PL: is as per:

Factory Act: Rate As per : Section 79 in The Factories Act, 1948…

Wages as per: Section 80 in The Factories Act, 1948….

 

Shops and Establishments Act (of the state):

e.g. Delhi Shops and Establishments Act: (You may relate with Act as applicable Act in yur state)

(Rate as per): 22. Leave:………..

(Wages as per): 23. Wages during Leave: 

If the leave is exceeding the limit of accumulation, you may avail.

 

----“ Also they mention about to terminate me,if i didnt follow this dictate. i didnt handover bike on specified time, so should I treat myself as terminated? 

Avoid termination. For termination order of termination should be issued and supplied.

 

You may submit a final representation to MD, Chairman preferably as structured and drafted by your lawyer.You may demand all docs and request to stop the harassment.


Attached File : 349914840 payment of wages act 1936.pdf, 349914840 the minimum wages central rules1950.pdf downloaded: 77 times
1 Like

Good Boy (None)     16 July 2013

kumar sir, company asked me to report in HO. what will they do / ask there? and what should be my approach? can they call police in HO and register case of not returning back "Gift" , for which I am still paying my share? ( till this month they deducted my payble amount from my salary). What should I say to police? can they force resignation? can they deny gratuity ? can they seize my pending expenses & this month salary + earn leaves dues? 

 

please suggest precautionary measures.

thank you

Note: other experts & well wishers please also throw some light on my problem.

Adv k . mahesh (advocate)     16 July 2013

as ho called you for talks raither then anticipation be firm and first what problem you faced in recent times for non achivement note down in a paper and also thus those points have contributed to achieve your target in previous years analyze correctly and write the answers to that before appearing HO and answer very confidently why you had to face hurdles in achieving the target

here one more point to be analyzed company may ask without the gift you had achieved and expected double the target once the gift was given to you but you should answer after giving fit the company has not provided the requisite goods to make the target achivement 

do not worry such up and down will be in sales career and anser confidently 

Kumar Doab (FIN)     16 July 2013

Lawyer who has seen all of your documents, gone thru your inputs and has analyzed the merits is best placed to advice you.

On line discussions have its own limitations.

 

Trade unions also may raise the issue effectively.

 

If you have apprehensions as serious as mentioned by you, you can ask for a companion while you attend the investigation being conducted by company: either a fellow colleague, trade union leader etc………………

However meet a local lawyer with copies of all docs and local trade union (whose member you are or some other trade union) leaders also…………………..

Your lawyer/trade union leaders may opine that:

If you feel that you would be subjected to a fabricated police complaint, you may register prior intimation to local police station, DGP and thru them inform DGP and police station at location company’s office..............................engage a local lawyer at location of the meeting...............

If you are coerced/forced/pressurized to write down your own resignation you can withdraw it later ………………………….however the onus of providing the evidence/proof of having extracted the resignation under force shall be upon you. Therefore it is better to keep evidence/witness/ audio-visual………………………….

Forced resignation can be termed deemed termination.

Extracting resignation by force is offence.

Gratuity can be forfeited as per:

   Payment of Gratuity Act, 1972

Section: 4: Payment of gratuity: sub section : (6) Notwithstanding anything contained in sub-section (1), -

The time for payment of FNF dues is usual pay day.

Who can stop an adamant company to block the FNF settlement?

Your lawyer can update you on the legal recourse.

Your trade union can support you.

You may proceed as deemed fit, and do your homework in consultation with elders in the family, lawyer/law firm/trade union……………………..

 

 


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