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Ariyaan (arm)     25 May 2013

Non payment of salary

Respected Sir/ Madam,

                                           I am working in a securities company. My designation is BM over here. With out providing proper support to us and proper service to our clients the co is asking a high amount of business from our Branch office. Naturally, we can not able to hit that huge target. As a result, they told us that, they are not going to pay a single penny as salary and even branch expenses. Two RMs and the Dealer  have not been paid salary for last two months and I have been unpaid since my third month in this compay. The branch office is going to complete its 5th month. The company did not pay any appointment letter to any of its employees, They had provided  just an offer letter. Kindly suggest us -how can we recover our salaries? What should we do in this situation.

Please help us . Please



Learning

 8 Replies

Kumar Doab (FIN)     26 May 2013

There are an ever increasing number of threads being posted by employees on not being paid by employers, the employers coercing to resign, issuing threats to terminate/block proper relieving letters/ issue adverse reference checks, ...............….

 Other thread initiated by you:https://www.lawyersclubindia.com/forum/Late-payment-of-salary-81437.asp#.UaHCI9KAqWM

Since employer has announced it won’t pay and you are apprehensive that you may not get paid, you are making a mistake for working without getting paid for earned wages.

 

Salary can not be stopped.

 

There is nothing wrong if a company and employer is ambitious and aims high, drives the team of employees to achieve unparallel success.

However it does not mean that employers shall not support the employees and ask the employees to work for free and rather pay the employer, as in your case you are footing the bill for Branch Expenses and are working without payment of wages.

 

You may go thru some interesting threads:

 

 

e.g:

https://www.lawyersclubindia.com/forum/Salary-due-for-6-months-81100.asp#.UaDczqKAqWM

 

:https://www.lawyersclubindia.com/forum/Company-in-liquidation-77247.asp#.UZtk5KKAqWN

 

Probably you are apprehensive that since appointment letters, salary slip are not issued, employer is fooling the employees and authorities…………….

 

 

First of all al employees may join hands, agree to be a witness to each other, and firm up your next employment as ap, and then submit notice of resignation to the current employer.

If you resign with immediate effect the employer would be happy to square off your dues and adjust notice pay.

 

{If you decide to resign take care to declare the employer unworthy of being employed with and demand that notice period/pay be waived off in writing, and such a communication preferably drafted by your lawyer.}

 

In the mean time submit a gentle and pointed representation addressed to good offices of appointing authority, MD, Chairman, Company Secretary,……..and narrate what were your expectations from the company and what promises were made to you while appointing you, lack of support, infrastructure, resources, non payment of wages, salary, branch expenses etc………….. (Write only those points which you can prove later) and conclude that you are facing acute financial hardships and are not able to meet expenses of attending to office, your family and personal needs and should be paid at once.

 

 

 

>>>In addition to the Industrial Disputes Act, 1947, states also provide for compliance's under the Shops & Establishment Acts, Standard Standing Orders Act……. If the employee falls within the definition under these enactments, then he would be protected, up to that extent. All of these enactments may be available at the Dept. of Labor website of the state.

 

 You can approach all authorities as per your eligibility:

  O/o Labor Commissioner, Inspector under Shops and Establishments Act of the State

(Applicable to al employees as per definition of employee in the Act), 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), civil court, trade unions………..

 

 

You have posted that:

 

------“ they are not going to pay a single penny as salary and even branch expenses. “

 

Employee should record such transactions (audio/visual) and keep evidence, for use at appropriate time in appropriate forum..

 

Find your own way and mean to report to good offices that Mr/Ms………….has states so…..on dated……...at…………..and build some favorable record in writing (under acknowledgment), in personal files at home.

 

------“ The company did not pay any appointment letter to any of its employees, They had provided  just an offer letter.”

 

What is the probation period stated in offer letter?

 

Designation alone does not decide employee is a workman or not.

It is felt that notice period is not applicable during probation period.

 

{ Model Standing Orders:

13.          Termination of employment.- (2): ………………….. no probationer ……….shall be entitled  to any notice or  pay in lieu thereof if his services are terminated ,………………………..}

 

 

The company must have registered under Shops and Establishments Act of the State.

While you may refer to the act as applicable to your state.

 

Let us take a cue from e.g. : Delhi Shops and Establishments Act

 

19.  TIME AND CONDITIONS OF PAYMENT OF WAGES.

20.  DEDUCTIONS WHICH MAY BE MADE FROM WAGES.

21.  CLAIMS RELATING TO WAGES.

 

34.  Employer  to  furnish  letters  of  appointment  to  employees……………….

COMMENTS

The object of the enactment is to furnish an accurate proof of employment to an employed person and for this object in view, the Legislature provided that…………

 

Failure  to  issue  appointment  letters  under  section  34  of  the  Act  to  the  employee amounts to ‘unfair labour practice’ resorted to deprive them of the benefits which accrue to  them  due  to  the  length  of  their  service;  Bharat  Mudranalaya  v.  Workmen,  Delhi Gazette, dated 7-5-1970 (IT).

 

 

30. Notice of Dismissal.: (2)  No  employee  who  has  put  in  three  months’  continuous  service  shall  terminate  his employment unless he has given to his employer a notice of at least one month, in writing.

 

{Implying for service period below 3 month’s notice period is NIL, and above it is max. 1 month}

 

COMMENTS

(a) Applicability of section 30:…………………….In the absence of any standing orders or any contract between the employer  and  the  contesting  respondent  containing  any  particular  terms  or  conditions,  the conditions of service of the employee relating to his employment in an establishment atDelhi are covered by section 30(1) of Delhi Shops and Establishments Act, 1954

 { Aparently since there is no appointment letter issued and accepted by employee trhere is no contract} 

(b) Notice or wages in lieu thereof under section 30—When to be given?

A plain reading of section 30 of the Act would make it clear that whereas the notice of one month under sub-section (1) is for the benefit of the employee, the notice under sub- section (2) is for the benefit of the employer.

 

{Implying …………………….long notice period is obviously for the benefit of employer}

 

33.  Records.

COMMENTS

(a) Particulars and forms of the records required to be maintained under section 33………..

 

The register of employment and  wages is required to be kept in Form ‘G’ duly bound and

pages serially numbered……………..

 

(b) Grant of exemption from maintenance of prescribed records

Under  rule  (14A)  of  the  Rules  if  on  an  application  made  by  the  employer  in  writing  the

Government is satisfied that any register or record maintained by such employer gives in respect

of the person employed by him the necessary particulars required to be shown in Form G/H/I to

be  maintained, 

 

(c) Failure to maintain records—if single offence

Under sub-sections (2) and (3) of section 33 of the Act read with the rules framed thereunder,

the occupier of any shop or establishment is under an obligation to keep a record of the hours

worked, the amount of leave taken by end of the intervals allowed for rest and meals to every

person and particulars of all employment overtime as also to keep exhibited notices setting forth

the number of hours in the week and such other records and registers as may be prescribed and

display  such  other  notices  as  may  be  prescribed. 

 

 

37. Powers and duties of the Inspector: (b) Duties of the Inspector : (i)  that in dispensing with the services of an employee the provision of the Act and Rules have  been  complied  with  and  no  dues  payable  under  the  Act  or  Rules  have  been withheld;

 

 

41. Wilfully  making false entries.

{ Companies post salary in expenses, and if it has not paid salary but posted, it is false entry…..}

 

Along with appointment letter company must have issued slip for all months, PF number, ESIC Card (Wage ceiling has been raised to Rs.15000/pm), Group Insurance etc………….

 

If not complaint can be made to RPFC in o/o PF commissioner, directory is available at:

www.epfindia.gov.in

 and ESIC office.

 

----------‘THE PAYMENT OF WAGES ACT, 1936”

 

2. Definitions:

 

(ii) 4*["industrial or other establishment" means]………..

 

8*[(h) any other establishment or class of establishments which the Central Government or a State Government may, having regard to the nature thereof, the need for protection of persons employed therein and other relevant circumstances, specify, by notification in the Official Gazette.]


3*[(vi) "wages" means…………..

 

all remuneration (whether by way of salary, allowances or otherwise) expressed in

terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and includes-

(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;

 {You may lodge a complaint with Wages Inspector}

 

 

3. Responsibility for payment of wages.

 

4. Fixation of wage-periods.

 

5. Time of payment of wages.-

 

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.-(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.

{ Implying pay slip should not be only issued but signed by employee and record be maintainewd for 3 years}

 

(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.]

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

16. Single application in respect of claims from unpaid group.-

 

17A. Conditional attachment of property of employer or other persons responsible for payment of wages.-

 

 

You may approach a labor consultant/service lawyer at your location, show all of your documents, give inputs in person, and proceed under expert advice of the lawyer.

 

 


Attached File : 140719455 payment of wages act 1936.pdf, 140719455 delhi shops & establishments act, 1954.pdf downloaded: 151 times

Ariyaan (arm)     27 May 2013

Dear sir,

             You asked that:

What is the probation period stated in offer letter?

The offer letter is containing this lines:

It is our Pleasure to offer you employment based on the interview and discussion held with MAX PLANWEALTH COMMODITIES LTD.

You are expected to join the co. on 02.01.2013. you are appointed to the position of RM at our Burdwan Office.

The offer stands cancelled if you fail to report on the appointed date or for any deviations in information. You will need to submit a copy of all your originaldocuments and last three months' salary slip.

The Company reserves the right to terminate the assignment at its discretion, without notice and pay due to non-performance of targets set periodically by the management and on disciplinary grounds. Salary payments shall be as per fulfilment of minimum revenue targets by the management periodically.

 

2nd month onwards target was 125000. But they set this terget vervbally. But the true fact is that, they set this target with out providing proper support. Few of our client had been  harassed by non-payment of their pay outs timely and many more.

Today or tommorrow entire branch is going to talk about this matters with th MD and HR. If no fruitful result come out then we want to file a suit.

Now my questions are :

what kind of  suit should we file?

What would be the process?

Kindly reply as early as possible!

Kumar Doab (FIN)     27 May 2013

 

 

The lawful authorities and forums where employee can agitate as per eligibility of employee have already been posted.

O/o Labor Commissioner, Inspector under Shops and Establishments Act of the State

(Applicable to al employees as per definition of employee in the Act), 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), civil court, trade unions, RPFC in o/o PF commissioner, ESIC………..etc”

 

 

 

You may approach your lawyer; show all documents to understand the merits in detail.

Let your lawyer’s opinion be final on all points discussed in this thread.

Your lawyer may opine that a complaint under Section 406,420 can be filed.

You can also approach trade union which are believed to be strong in West Bengal.

 

 

You have posted that:

 

------“You will need to submit a copy of all your originaldocuments and last three months' salary slip.”

Did you submit the photocopies/attested copies of original testimonials and show originals for the purpose of OSV, along with copies of last three month’s salary slips?

 

The company has issued only the offer letter which is issued confirming selection.

 The appointment letter is issued upon joining. You have stated that appointment letter with detailed terms and condition is not issued, hence not accepted by you and employees.

If the company supplies the appointment letter now: all employees may write on the copy that it is supplied on dated………………..and put current date. Before accepting the appointment letter you may show it to your lawyer.

 

The company has demanded 3 month’s salary slips of last employer and it should also have issued salary slips while you were in employment with current employer.

 

Did the company issue salary slips to all employees? You may demand salary slips of all month’s.

 

 

-----“The Company reserves the right to terminate the assignment at its discretion, without notice and pay due to non-performance of targets set periodically by the management and on disciplinary grounds.”

 

This implies that no notice period is applicable in case employer initiates termination.

 

The equitable discretion should be available to employee as well and if employee initiated termination due to non payment of earned wages and reimbursements of expenses, not period/pay should be applicable.

 

-------“Salary payments shall be as per fulfilment of minimum revenue targets by the management periodically.”

 

The earned wages for the period employee has been put to work can not be stopped.

 

The company can not decline to pay the earned wages. Such a clause may be termed illegal.

 

 

------“2nd month onwards target was 125000. But they set this terget vervbally. “

 

The company has willfully not maintained any record in writing, including appointment letter with detailed T&C.

 

Gossip and rumor can not be rules and policies.

 

 

-------“But the true fact is that, they set this target with out providing proper support.”

 

The company has miserably failed to fulfill its obligations and this seems to be willful.

 

 

--------“Few of our client had been  harassed by non-payment of their pay outs timely and many more.

The disbursement of payments to customers seems to be controlled by HO and thus is duty

The company has not been dutiful and responsible to its clients also in addition to its employees. If the customers are not serviced by company, the business of the branch shall be hit.

 

Can you arrange to obtain written grievances from customers and would the customers stand by you as witness and confirm whatever is written by them is true?

 

 

You have stated that your location is Burdwan: West Bengal.

 

Has this company registered its office, if yes who is the employer/occupier/agent of employer/Manager in the registration certificate?

  • West Bengal Shops & Establishments Act, may be looked into carefully,  including sections on ( You may obtain the latest version from Inspector under this Act or o/o Labor Commissioner or from market):
  • Payment and recovery of wages
  • Notice of termination of service
  • Registration
  • Keeping records
  • Records/Registers to be produced :

 

  • Appointment letter in Form X
  • Attendance register in Form I
  • Pay register in Form M
  • Leave register in Form J
  • Register of Employees in Form W
  • Overtime register in Form U
  • Visit Book

 

 

 

 

 

 

 

 

 

As posted on website company pays following:

https://www.maxplanwealth.com/CorporateInformation/Directors-Reports/Multi-Commodity-Exchange-of-India-Ltd/534091

*Total remuneration includes Salary, Bonus, Incentive, Commission, Allowances, Leave

Travel Assistance, Medical Benefits, Gratuity, Company’s contribution to Provident

Fund and other perquisites and benefits valued as per the Income Tax Act, 1961.

It is felt that company’s redg. office is in Mumbai;

 

{Bombay Shops & Establishments Act is so employee friendly}

 

 You may proceed under expert advice of your lawyer


Attached File : 354496306 west bengal shops estab act brief 1963.112130050.doc downloaded: 100 times

dipu singh (Project Manager)     25 November 2013

Respected Sir/Madam,

I am working in a X Construction Company ( based near Delhi))as a Project Manager for last five months but company have not pay my ( others also)salary till date since joining except some salary advance at site (Assam). Project(Assam) has been cancelled by client three months ago, but they keep telling me and other staff they project will be revived once again , then we will pay all your dues. I email, SMS, calll on telephone for payment of my salary and other staff but they tell they will pay by tommorow,a week , month, etc. But no salary credited till date. I have my appointment letter, salary slip of first month(unpaid), attendance register , all email, letter as proof of my pending dues. I told the GM over telephone to pay all my pending dues till date(FNF) and terminate me and he also SMS me better join another company but how I can since i have a lot of debt owe to company. But they neither do terminate me or us nor make any payment, or reason for non payme

Today i issue a Legal notice to the CMD, Director, GM by an experienced lawyer by mentioning all dues and details. Will it work? . If it does not work how to proceed further by legally in court and labour commissioner/court etc. 

My gross salary is Rs. 50,000/- per months.

Please guide properly.

 

Kumar Doab (FIN)     26 November 2013

Krishnamurthy (BDM)     01 December 2013

Respected Sir

I am working in a X Trading  Company ( based near Delhi))as a Business Development Manager for last more than five years but company have not pay my ( others also) last two months salary till date  . I email, SMS, calll on telephone for payment of my salary and other staff but they tell they will pay as soon as the situation imporves and there is a cash crunch in the co. etc. But no salary credited till date. I have my appointment letter, salary slip is not issued , . I have requested to my MD over telephone to release my pay and also travel bills which amounts to more than three lacs all my pending dues till date(FNF) since the dues are there they are not terminating me also

 

My HO unnecessarily harass me and say the will adjust my salary towards the recoveries to be collected from clients they threaten me with adjusting my salaries towards any LD deductions made by customers even though LD Clause is accepted by co and the order placing co.

 

Kindly advise me whether any co has right for such deduction from employees salaries from such non recoveries? my salary is around eighty thousand.pm.

 

they have already deducted my salary saying I have not sent the reports 

 

Pls help whether it is appropriate to resign with due notice of three months(as it says in appointment letter) and put my papers and what to do if they ditch me with out paying any thing even after serving three months notice also>

 

my co is in delhi and I work in south for southern region

 

pls help

 

krishnaa

Krishnamurthy (BDM)     01 December 2013

Respected Sir

I am working in a X Trading  Company ( based near Delhi))as a Business Development Manager for last more than five years but company have not pay my ( others also) last two months salary till date  . I email, SMS, calll on telephone for payment of my salary and other staff but they tell they will pay as soon as the situation imporves and there is a cash crunch in the co. etc. But no salary credited till date. I have my appointment letter, salary slip is not issued , . I have requested to my MD over telephone to release my pay and also travel bills which amounts to more than three lacs all my pending dues till date(FNF) since the dues are there they are not terminating me also I do not know whether I am eligible to claim gratuity>

 

My HO unnecessarily harass me and say the will adjust my salary towards the recoveries to be collected from clients they threaten me with adjusting my salaries towards any LD deductions made by customers even though LD Clause is accepted by co and the order placing co.

 

Kindly advise me whether any co has right for such deduction from employees salaries from such non recoveries? my salary is around eighty thousand.pm.

 

they have already deducted my salary saying I have not sent the reports 

 

Pls help whether it is appropriate to resign with due notice of three months(as it says in appointment letter) and put my papers and what to do if they ditch me with out paying any thing even after serving three months notice also>

 

my co is in delhi and I work in south for southern region

 

pls help

 

krishnaa

Kumar Doab (FIN)     01 December 2013

 

Regret it is not clear that you are working in Delhi or some other state?

 

Mention your state.

 

You are eligible for Gratuity. The employee can submit FormI 1 month before the date of retirement (effective date of resignation)  chosen by employee.

 

The employer is not paying wages and has become unworthy of being employed with. IN such a case the notice of resignation must be declared to have lost its sanctity. The employer should, on his own waive off the notice period.

However if you have to resign you must before hand submit a claim of your unpaid wages and reimbursements and under proper acknowledgment and must obtain confirmation of receipt.

 

You must declare that due to unpaid wages and investment of your earned wages caused by employer in expenses (unpaid) you are not able to bear the expenses to attend the office.  

 

However let your lawyers structure such communications which are of sensitive nature.

 

 

 

The employer has turned so selfish that it is looking for tactics to square off the dues.

 

If the company has communicated non receipt of reports reply properly and if you have sent the reports as per laid out procedure in the company deny the contentions of the company and provide POD and copies of the reports under proper acknowledgment.

 

It is felt that so called LD can not be deducted from due wages.

 

You may approach a lawyer specializing in labor/service matters, Shops and Commercial Establishments Act of the state in which you are located and show the job advertisement, job application, interview call letter, selection letter, offer letter, appointment letter, standing orders applicable to the company and extended to your designation (Certified/Model), service rules, HR policy, service cods and regulations, exit policy, FNF policy and any other policy applicable to you......................and give inputs in person.

 

If the company has defaulted on payment of wages of all employees then it might have not paid PF, ESIC contributions, TDS etc...........................IN such a case the o/o RPFC, Jurisdictional ESIC Inspector, CIT-TDS can be sounded and these officials are expected to take suo moto notice too................

 

Designation alone does not decide that employee shall be covered as ‘Workman’ as in ID act, ‘Employee’ as in Shops and Commercial Establishments Act of the state. Your lawyer can opine you would be covered as or not.

 

In the absence of such coverage Civil Court would be one of the options.

 

There are threads to indicate that employees have been contemplating to lodge criminal complaints u/s 406, 420 and approach

Employer as creditors treating unpaid wages as debt on employer...................

 

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

 

 

The employee can approach: O/o Labor Commissioner, Inspector under Shops and Establishments Act of the State

(Applicable to al employees as per definition of employee in the Act), 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), civil court, trade unions, RPFC in o/o PF commissioner, Jurisdictional ESIC Inspector, CIT0TDS where company files ITR and ITO-TDS where employee files ITR………..etc”

 

You may proceed under expert advice of your lawyer.

 

 


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