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A Bhattacharjee (Service)     21 March 2016

Dispute with previous employer(pending terminal dues)

Dear LCI Team,

 

I would like to brief about my case as below:
 
I have worked for my previous company from June, 2014 to July, 2015 as Manager-Sales posted at at Kolkata and was operating from my residence. I decided to resign from this company on 6th July,2015 due to differences in opinion and false allegations made during the meeting held at Gurgaon on 5th July,2015 and expressed my desire to serve a notice period of one month through mail. But instead of accepting my resignation,I was provided a letter on 6th July,2015 itself stating that I have been terminated from the company w.e.f that date itself due "Summary Dismissal"  and  they refused to pay my legitimate terminal dues like leave encashment, notice pay, pending travel reimbursement and incentives etc.  and claimed the part amount will only be paid only after I handover demo instruments for which I did not have possession.
 

My previous employer has only one registered office in Gurgaon. I was posted at Kolkata though I was operating from my residence as they didn't have any branch office at Kolkata. My salaries were being credited to my ICICI bank account at Kolkata. My offer letter was also issued on my residential address at Kolkata.But,the jurisdiction mentioned in the terms & condition is Gurgaon where the registered office is located.
 
Can anybody advise me how to proceed now to recover my legitimate dues as they have refised to make any payment even after I have sent twp legal notice.
 
Can I file a Money Suit?
Can I proceed through Labour Court?
Can I file wind-up petition?
 
 
Regards,
A.Bhattacharjee


Learning

 3 Replies

Kumar Doab (FIN)     23 March 2016

Was any show cause notice issued to you and enquiry conducted?

Do you have copy of 'Conduct and Discipline Rules/Service Rules and regulations etc' mentioned in appointment letter?

Was the 'Summary Dismissal' in  line with service conditions applicable to you?

 

What was your nature of duties?

HOw many persons were reporting to you?

Did you have any power to sanction (not just recommend) increment/leave/appoint/terminate etc? Could anyone cancell your recommendations?

 

If the dismissal was due to proven misconduct then company may not tender noticve pay.

 

You can file for recovery suit/winding up petition.

Your able counsel specializing in labor-service matters can advise you labor Court.

 

A Bhattacharjee (Service)     24 March 2016

Dear Kumar Sir,

Plz see my replies as below:

Was any show cause notice issued to you and enquiry conducted?

Neither there was any warning nor show cause notice nor aby domestic enquiry conducted against allegation/charges based on which summary dismissal was effected for termination.

Do you have copy of 'Conduct and Discipline Rules/Service Rules and regulations etc' mentioned in appointment letter?

I was signed on the last page of appointment letter during joining and when they produce  entire terms & conditions of employment,I refused to sign on all pages.

 

Was the 'Summary Dismissal' in  line with service conditions applicable to you?

It was mentioned bit I did not accept and refised to sign.

 

Plz advise,

Regards,

A.Bhattacharjee.

 

Regarding termination, I have heard that there is no scope of summary dismissal under the Act, any illegal termination cannot be challenged through labour court.

What was your nature of duties?I was in Sales Profession.

HOw many persons were reporting to you? Nobody

Did you have any power to sanction (not just recommend) increment/leave/appoint/terminate etc? Could anyone cancell your recommendations? No,I did not have any power on the above neither I exercised.

Regarding recovery of dues including salary etc. can I recover through labour courts or through Shops & establishment referee ?

Kumar Doab (FIN)     25 March 2016

Whats is the opinion of your own counsel specializing in labor-service matters?

Have you indded consulted an able counsel?

 

An employer can dismiss an employee without notice (summary dismissal) if he or she is guilty of a gross breach of duty or other serious breach of the employment contract.

 

As regards termination of employment for disciplinary reasons, some instances of misconduct which may justify dismissal without notice and any compensation in lieu of notice are listed in the Model Standing Orders.Sec:14(2)-(3) e.g;

wilful insubordination or disobedience;
theft, fraud or dishonesty;
wilful damage or loss of employer’s property;
bribery;
habitual lateness or absence; and
striking unlawfully.

 

Does standing order (model/Certified) apply to your establishment/your designation as per nature of duties?

Are you covered by the def. of 'Workman' as in ID Act , 'Employee' as in  Shops and Establishments Act?

For proving gross misconduct employer should not terminate a person straightaway, and may  issue a charge sheet get the delinquents response.If employee admits then the punishment in accordance with Standing orders/ applicable service rules and regulations, can be given.If not a Domestic enquiry is to be conducted by appointing a Neutral Enquiry Officer who will submit his report on which basis the Management will take a decision.

 

You are trying to take refuge in statement that you did not sign all pages of appointment letter, but signed (and did not cancell signature on last page) on last page only.IN any case you accepted the appointment order.

 

If NO demo Instrument was ever given to you, then you must deny in writing under proper acknowledgment.

In any case the earned wages, leave encashment, etc may have to be paid.

Rest your able counsel can advise you further. 

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