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Anil Kumar (Tech Lead)     01 June 2012

Company is not paying the pending salary

Dear Sir,

I, Anil Kumar Lenka, Worked in Cranes Software International Ltd, Bangalore from Oct 2006 to Oct 2009 as a Member Research Engineer. Due to 2009 recession problem, the company was unable to pay the salary to his entire employer on March, 2009 onwards, most of Time Company was paying cheque but that was also bounced. Even company management called different meeting and given the assurance that they will pay the pending salary gradually, but there was no progress from company side. Due to continuation of this issue most of employee resigned from the company. I resigned from that company on Oct, 2009 with proper process without getting the pending salary.

I have 7 months’ Salary pending with company; even company has not paid our PF and income tax to Govt. also. After resigned onwards when I asked about my pending amount; they are not ready to give me any satisfaction date or time. Even some of my colleagues sending notice to the company but no respond the company.

Please kindly anyone suggest me what I should do to take any legal action against on company. Is there any law protecting employee's benefit?

Even If I get some good suggestion then we are planning to put some case against the company with group.

Your prompt response shall be appreciated.

Thanks & regards

Anil

aklenka@gmail.com



Learning

 31 Replies

Anjuru Chandra Sekhar (Advocate )     01 June 2012

Go as per S.138 of N.I. Act.  Burden of proof lies on him that he has paid the salary. If he cannot prove, he will be punished. Present all the salary cheques together (again) in the bank obtain same date cheque return memos from the bank and start initiating action with the help of Advocate.  Some formalities are there to scrupulously follow after you receive cheque return memo like sending notice demanding payment of money within 30 days and filing of complaint should also be within 30 days after the completion of notice period mentioned in demand notice.  So better appoint advocate and fight. 

 

Burden of proof generally lies on the complainant itself to show that there is legally enforceable debt, there needs to be some corroborative evidence to show there is legally enforceable debt.  But that is valid for things received not for things not received. 

 

For instance, you went to a shop of jewellery and purchased 10 items worth Rs.50 lacs.  You brought 10 items home in 10 boxes.  But after coming home you found that one necklace costing Rs.10 lacs is not there in one box.  You went back to shop to report the same, but the trader says, he had given everything you are lying.  You went and filed police complaint in P.S. saying that you made bill payment for 10 items and one items the trader had not given to you and now cheating you saying he had given. 

 

For thing not recieved burden of proof lies with you?  Similarly if you have not received salary, burden of proof lies with the Employer not with you.  He should substantiate if he made payment by showing Salary slip, cheque or cash receipt etc. 

Anjuru Chandra Sekhar (Advocate )     01 June 2012

He is your employer.  He is supposed to keep record of payment of salaries made to employees.  So if you make allegation despite being complainant, the onus of proof lies on accused only not on complainant.  Argue on these lines you will get justice. Just present the cheque and plead that the cheque relates to salary amount.  You don't need to present anymore evidence than that.  Having done that clarify in your pleadings itself, the point I mentioned that though law requires that the onus of proof lies on complainant, keeping in view the peculiar facts of case which places the accused in the status of Employer who has certain legal obligations towards salaries paid to employees, like maintaining record of salaries paid, EPF cut etc., the onus of proof lies on accused only not on complainant.

Kumar Doab (FIN)     01 June 2012

Mr. Chandrasekhar has given valuable advice. Kindly follow it.

It is indeed good that all of the affected employees have joined hands and have formed group to lodge a complaint. All of you can be a witness to each other.

You may obtain copy of the SE act applicable to your state, and read:

6. Closing of Establishment to be communicated to Inspector.

18. Mode of Recovery of Unpaid Wages.

27. Power and Duties of inspectors.

28. Employers to Produce Registers Records, etc. for Inspection.

30. Penalties

35. Saving of certain rights and privileges

 

All of you may lodge complaint with Chief inspector.

The contact address of inspectors can be obtained from Labor Website:

https://labour.kar.nic.in/labour/default.asp

 

If your wages are below Rs.16000/pm you may lodge a complaint with Wages Inspector. You may lodge a complaint with O/o Labor commissioner also.

As you have decided to approach a competent and experienced service lawyer, your lawyer shall evaluate your designation, nature of duties and shall advice further.

You should claim that since your wages were not being paid and hence employer has become unworthy of being employed with and notice pay should not be levied in FNF statement. This employer may attempt to coerce and force notice pay, and thus save a big amount. All of you should fight on this.


Attached File : 1054945491 karnataka%20shops%20and%20commercial%20establishment%20act.pdf downloaded: 1127 times

Anil Kumar (Tech Lead)     04 June 2012

Dear Sir,

  Thanks your valuable suggestion.

Thanks & regards

Anil

Rupak Kumar Parida (Team Leader)     14 August 2013

Hi, 

Am working with a company which is doing Inventory, Taxation Audit for some giant companies. But the problem is like the company is not paying the salary properly. My May-13 salary got in the month of August-13 andstill Jun,July-13 salary is pending with the company.

As every meeting company is giving one date but which is not happening.

Thbe issue happened with old employees then company removed them forcefully without salary. but those employee called one minisry personel and took their salary recently.

So, please let me know how to get salary and give that company a good lession.

Farook (fashion consiltant )     01 October 2013

hi sir im farook from chennai im studying 2nd ba. economics. i was worked in express avenue passed 10months. last month  there some miss understanding so was left that job. im studying in my own money they are hold my salary . pls tell me where should u complaint .

Kumar Doab (FIN)     02 October 2013

@ Farook,

Always start a new thread.

If the employer has been sitting on payment of FNF dues, wages open all fronts.

Submit by redg. post final notice to good offices of appointing authority, MD……………and based on reply proceed further.

However it shall be appropriate to approach a competent and experienced labor consultant/labor consultant in person show all of your docs and proceed under expert advice of the lawyer.

You should have resigned properly.

The lawyer that has seen all of your docs can advise you the best.

The time for payment of FNF dues is last day in office, or within next two days or by usual pay day.

Employee can approach:

>> Lawyer/Law firm: The legal notice from lawyer can drill sense into the heads.
>> Trade Unions, employee’s group/union/IC/Guild………………….. 

>> O/o Labor Commissioner: labor Inspector………..

>> Inspector under Shops and Commercial Establishments Act of the State…………

>> Inspector under Payment of Wages Act ( Applicable to all employees drawing wages as per def. of wages in the Act  up to Rs.18000/pm)

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.-
7. Deductions which may be made from wages

>> Police; Approach higher officials if no perusal of complaint has happened.

There are threads to indicate employees have been contemplating to lodge criminal complaint under sec 406/420………………………..and approach employers as Creditors treating the employer as Debtor and unpaid wages as debt on employer…………….

https://www.lawyersclubindia.com/forum/details.asp?mod_id=72011&offset=1#.UNRXofLZ1JI

Discussion > Labour & Service Law > Disputes > Delay in full and final settlement payment

>> Form16: Lodge complaint with ITO-TDS where employee files his IT return and jurisdictional CIT-TDS where employer files his return.

>> PF; The company could have chosen to deduct PF on the threshold compulsory limit as set by EPFO.

>> ESIC: The wage ceiling was fixed at Rs.15000/pm as per def. of wages in the Act.
{It has recently been hiked to Rs.25000/pm
https://www.lawyersclubindia.com/forum/files/1001059752_esic-limit.pdf}

 

 

>> Civil Court

SANJOY (no)     26 May 2014

DETAILS I have joined to ZODIAC EXPRESS PVT LTD as ASSISTANT MANAGER - ADMINISTRATION on 09th August 2010 with a salary of Rs.20,000/(Rupees Twenty Thousand Only) per month. Later on from April 2012 I was promoted as MANAGER - ADMINISTRATION with a salary of Rs.25000/(Rupees Twenty Five Thousand Only) per month. Due to some personal reason I have resigned from the post of MANAGER - ADMINISTRATION. My last working date was 12th July 2013. I have submitted my formal resignation letter through e mail on 12th August 2013. I have received salary till for the month of May 2013. ZODIAC EXPRESS PVT LTD HAS NOT PAID MY SALARY FOR THE MONTH OF JUNE 2013 AND 6 DAYS(6 DAYS I HAD WORKED IN JULY 2013) OF JULY 2013. THE COMPANY HAD NOT PAID ME MY ACCRUED BONUS ALSO FOR THE FINANCIAL YEAR 2012-2013. THEY PROCESSED MY SALARY FOR THE ABOVE MENTIONED MONTHS BUT DID NOT DISBURSE IT TO ME TILL NOW. Number of times I had called Mr.Subal Chandra Chakraborty (M D) regarding my due salaries and bonus to be cleared but no response I got from his side. I emailed him also for the said purpose but no reply received. It has almost been a year gone by I have been deprived and cheated by ZODIAC EXPRESS PVT LTD. PRAYER In such circumstances, I would pray you to intervene the matter and arrange to make Zodiac Express Pvt Ltd to pay my due salaries and bonus with INTEREST with immediate effect. The relevant documents have been attached for your reference. Regards, Sanjoy Nandi 8017826709 Kolkata

Attached File : 304889113 6. jun , 304889113 7. jul , 304889113 e mail copy.docx downloaded: 766 times

Muazzam (Director)     10 September 2014

Hi,

My name is Muazzam Ali and I was running a company in New Delhi. Everything was going smooth till June 2014.

Our payment of around $ 8500 USD got stuck in foreign payment gateway due to which everything got worse and with time it became worst and now the situation is that I am not even able to pay my own house rent and the employees are asking for their salaries knowing what the situation is. All the assets are gone and every employee now wants to file a legal case on the company.

Please advice what should I do, Its not that I dont want to pay, but I dont have any money right now to pay.

Thanks & Regards,

Muazzam Ali,

muazzam.a.rana@gmail.com

+91-9717268671

Kumar Doab (FIN)     10 September 2014

@ Muazzam Ali,

Hope you shall take it positively.

 

1. $ USD 8500/-= say Rs.425000/- only has landed you in trouble. That speaks about solvency margins that you have kept. It is poor. YOU were not prepared for the rainy day............................eventualities. 

 

2. The employee's are right.

Unpaid wages are debt on employer.

Then statutory authorities shall also be demanding dues to be paid to govt...............................e.g. Taxes, PF ESIC etc.....................

 

3. Soon the unions may be breathing down the neck.

Do whatever you can, pay the dues, and do not be behind bars. 

B Naresh Reddy (Tech support)     02 February 2015

Hi sir,

I Naresh worked in a local broadband company for 2 months(dec 1st 2014 to jan 30 2015)

actually i leaved that job in last month jan 30th because they are not paying the salaries intime even i did not get my first month salary. so, please help me sir regarding this query what i have to do.

B Naresh Reddy (Tech support)     02 February 2015

not paying sir they are telling they will give only one month salary, giving this one month salary also they taking time

Kumar Doab (FIN)     02 February 2015

@ B.Naresh Reddy,

 

You may go thru the reply given in this post to @ Farook..............It is felt that same may apply to you........................and you may approach the unions and authorities....

Has the company issued appointment letter,salary slips,PF number,ESIC card, Form16...................service certificate,relieving letter,.....................demand everything in writing under proper acknowledgment by letter addressed to appointing authority,MD thru redg. post....and do not forget to mention that since your earned wages were not being paid on usual pay day you had no alternative but to leave and you left on dated......................with prior discussion and information to your superiors Mr/Ms...................and NO tasks were pending at your end..

Yadav Prakash sapra (Asstt. General Manager)     22 February 2015

hi I am yadav prakash sapra


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