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SoftwarePro (Manager)     10 September 2013

Confused & helpless - wrongful termination

Dear sirs,

A  company based in mumbai hired me to work with them. I have been working with them for the past 6 years. My designation with the company was " systems Analyst". Four months ago the company verbally terminated my services citing economic downturn and asked me not to come to work. No written communication was given to me although my employment contract stipulates that either party has to give at least one months written notice. Furthermore the company has not cleared my pay for the last working month. The company has not issued me any experience letter or relieving letter and Im finding it tough to gain fresh employment

I had approached a local lawyer who said that i cannot go to a labor court as my salary drawn was approx 12 lakhs per annum and thus i dont qualify as a "workman". i was advised to approach a civil court and file for recovery.

My question to experienced lawyers is : Is my lawyer right in saying that i cannot approach a labor court because my salary was high??  Secondly, if i do approach a civil court then what charges can i file against the company?? 

Thank you very much and looking forward to your expert opinion

Asim

 

 

 

 



Learning

 9 Replies

M.S.R.Murty ( Manager (Admn))     11 September 2013

Dear Sir,

General conciliation can be done through labour Department on your written appeal to them. 

SoftwarePro (Manager)     11 September 2013

Dear Mr Murthy,

Thanks for your reply. Could you kindly explain what is General conciliation and what is the procedure for it?

Thanks

 

M.S.R.Murty ( Manager (Admn))     11 September 2013

Dear Sir,

Please approach the concerned  Labour department officials with your complaint .  you just mention all your problems & requirements in the written appeal.And enclose all the copies of your appointment order, Agreement and other documents like mail messages related to the issue.  Fix Rs.2/- non-judicial stamp on the appeal.  You just personally call on the officials and explain the problem.  They may issue notices to your employer and you also  to produce relevant proofs. This depends upon the initiation of the Departmental Officials.  Just try, you will not loose any thing   

SoftwarePro (Manager)     11 September 2013

Thanks Mr.Murthy. I will check with some labour consultant on how to proceed. Meantime, If i decide to file a civil suit against the company then what charges can i file against them? How much compensation can i seek? Please kindly advise.

Thanks

M.S.R.Murty ( Manager (Admn))     11 September 2013

Dear Sir,

When you want to file a suit, your  Advocate can advise for compensation on merits of papers and agreement. Good luck.

Kumar Doab (FIN)     12 September 2013

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

Verbal orders of termination should be followed with written order by effective mode of communication e.g; redg. post., and one copy should be inserted in personnel file and reason be recorded in service card too.

Have you submitted any representation in writing under acknowledgment so far, narrating verbal orders of termination and order to not to attend office w.e.f dated………….?

Have you submitted FormI for the payment of Gratuity? You are eligible for payment of gratuity.

The action of the company may amount to lay off/ retrenchment and you may be eligible for compensation………………..

The designation alone does not decide employee is a workman as per ID Act, employee as per Shops and Commercial Establishments Act or not…………….

The employee in such a situation may approach:

O/o Labor commissioner ( if covered as workman as in ID Act)

Inspector under Shops and Commercial Establishments Act ( if covered as employee as in the Act)

Inspector under Payment of Wages Act (applicable to all employees drawing wages as per def. of wages as in the Act up to Rs. 180000/pm)

Civil Court

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

 

Bombay Shops and Commercial Establishments Act is so employee friendly.

You may approach a lawyer well versed with this enactment and proceed under expert advice of the lawyer.

 

38. Application and amendment of the Payment of Wages Act. (l) Notwithstanding anything contained in the Payment of Wages

Act,  1936, (V  ?f

1936)………. the Inspector appointed under this Act shall be deemed to be the Inspector…herein referred to as "the said Act",…….for the purpose of the enforcement of hei provisions of the said Act within the local limits of his jurisdiction.

( Implies that the Inspector under SE Act shall be the Wages Inspector )

[?8 ?. Application of Act VIII of 1923 to employees of establishment.-The provisions of the Workmen's Compensation Act,  1923  (VIII  of  1923),  and the rules  made from time to time thereunder, shall,  mutatis mutandis,  apply to employees  of  an establishment to  which this Act applies, as if they were workmen within t! meaning of the Workmen's Compensation Act, 1923.

( Implies any employee under SE Act shall be eligible as if he is a workman and can invoke WC Act)

^[??-?.  Application of Industrial Employment (Standing Orders) Act to establishments.-The  provisions of the Industrial Employment (Standing Orders) Act,  1946,  in its application to the State of Maharashtra [(hereinafter in this section referred to as "the said Act"), and the rules and standing orders (including model standing orders) made thereunder from time to time, shall,  mutatis rnuimdis,  apply to  all establishments wherein fifty or more employees are employed and to which this Act applies, as if they were industrial establishment within the meaning of the said Act.

(Implies if company is under SE Act and if it has not framed its standing orders the model standing orders shall apply to all employees. Model Standing Orders are attached. You can also download from Dept. of Labor Maharashtra/Bombay website also. Thus while you can approach Inspector under SE Act you should also be eligible to approach Labor Inspector/ALC.)

{ Model Standing Orders: 3.               Tickets,  11.         Payment of wages,  13.       Termination of employment,  15.      Complaints, 17.  Liability of 17[employer].--, 18.          Exhibition of standing orders.-)

51.    Employer [and manager  to produce registers, records etc.  for inspection.

( Implies that if you lodge a complaint the Inspector can not check all records, your personnel file but can take these to his office. You may obtain certified copies and even peruse RTI route.)

Moreover the Inspector is under obligation report every two months as given in Sec.66

55.    False entries by employer and manager.

58.    Determination of employer for the purpose of this  Act.

??.Notice    of termination of service

 --In the meantime kindly go thru the attachments.

Valuable advice of learned experts is sought.

 

 


Attached File : 60267175 the bombay shops establishments act.pdf downloaded: 110 times

SoftwarePro (Manager)     14 September 2013

Dear Mr. Kumar Doab,

 

Thanks for your reply. The company has not issued any written communication stating that my employment has been terminated. Infact a few days after they verbally advised me of termination they sent me an email asking for resignation which i have not given (since it was not me who was quitting the job and i told the company that they should give me a relieving letter instead which they have not done so far)

We dint have gratuity. The company has deducted PF from my salary every month but so far have not even given me my PF number. I have salary slips as evidence for this deduction. Now it is not just a question of getting my unpaid salary but also compensation for the 4 months i have lost due to the company.

The lawyer who advised me said i cannot approach a labour court as my salary was high and as such i would have to go to a civil court. Is it time to change my lawyer?

Kumar Doab (FIN)     14 September 2013


 

You have posted that:

------“Infact a few days after they verbally advised me of termination they sent me an email asking for resignation which i have not given

This should entitle you for notice pay from date of email…………….

This email becomes a matter on record. NO one can ask employee to submit resignation. Let us go to the extent that demanding resignation can be termed offence.

If establishment has decided to separate it may initiate notice of termination/termination by order of termination.

-------“(since it was not me who was quitting the job and i told the company that they should give me a relieving letter instead which they have not done so far)”

First of all obtain a clear communication from your company (preferably in writing) confirming since you have not resigned what is your current status: resigned/terminated/absconding/abstaining/absenting etc………………….. as in record of the company e.g. personnel file, service card etc…………………

The company which has the nerve to demand resignation in writing may be pleased to state in writing that you have been terminated…………………….

--------“We dint have gratuity.”

Here you might be grossly wrong.

You have consulted a lawyer. Did your lawyer opine that Gratuity is not applicable in your case, and did he explain the reason also?

After inception if at any point of time the establishment had 10 employees…………………the Payment of Gratuity Act should be applicable…………………….It is applicable to all employees irrespective of their designation and amount of salary………………………

{ Payment of Gratuity Act, 1972

Section: 1:Short title, extent, application and commencement: (3) (b) (c),(3A)

Section: 2:Definitions(e)}

 

If PF is applicable then company had 10 employees.

You may submit FormI as ap by redg. post.

If anyone in company stated that Gratuity is not applicable you may charge him/her by name.

--------“The company has deducted PF from my salary every month but so far have not even given me my PF number.”

Demand PF number in writing and PF a/c slips of entire period of service by redg. post only and add that postage prepaid self addressed envelope is attached.

If company does not meet RPFC at your location in person with copies and POD of representations supplied by you and lodge complaint in writing under acknowledgment.

 

There should be no harm in obtaining second opinion, from a competent and experienced labor consultant/service lawyer. This is altogether different and field of law and few lawyers in each city are known experts in this filed and they are well known. Such cases are referred to them. You may ask around and you can find all such lawyers and decide.

Online discussions have its own limitations.

 

It is reiterated that the lawyer that has seen all of your docs and has analyzed your inputs can give best advice to you. You may proceed under expert advice of your lawyer and as deemed fit at your end.

Sudhir Kumar, Advocate (Advocate)     17 September 2013

well elaborated by Mr Kumar Doab


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