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Prashant (Lead)     06 May 2014

Employer threatening

Dear Sir

I am working in a company since 9 years, after spending 9 years I felt I am getting lower salary than my juniors. So I have decided to move on and resign. before move I have also explained my salary expectation which they are not ready to do. meanwhile I get offer from a rival company of my current employer. Now my current employer is giving me trouble, threatening to not join this company and trying to do that different way. like: 1) they will file a case against me if I join this company,2) They will hold back my dues like notice period salary, gratuity, PF amount.3)I have to set back for two month more otherwise they will not provide relieving letter and other documents. As per my knowledge after serve a resignation they have to relieve me after one month as the company notice period was one month.

My questions are:

  • Can they really file a case against me?  
  • Can they really hold back my dues? 
  • What should I do if they dont provide me relieving letter and other documents? 
  • What type of case I can file against them and how if they they not provide me all my dues? 
  • If I file a case against them what are documents do I need? 
  • How long it will take to resolve the issues?

 

Regard

Prashant

 

 



Learning

 6 Replies

Kumar Doab (FIN)     06 May 2014

 

>>> First of all:

--- record (audio/visual) all threats being made to you and keep some irrefutable witness with you for use at appropriate time in appropriate forum.

---without any delay spend quality time with a competent and experienced labor consultant/service lawyer, show all docs and proofs on record, give inputs and under stand the merits.

Let your lawyer structure all representations now including notice of resignation and subsequent communications.

Do not forget to mention in notice of resignation that you are tendering notice of resignation of 1 month as per clause no……………………..in appointment letter dated …………..issued to you, no tasks are pending at your end as on date and routine duties be assigned to you that can be completed within and up to last date in office/expiry of notice period, and to whom you should handover the charge  against acknowledgment on the spot, and up to last date in office/expiry of notice period.

You may also demand to supply you  the acknowledgment of notice of resignation immediately, acceptance of resignation, service certificate, relieving letter (with good comments and avoid without or with adverse comments), correct FNF statement, FNF dues by bank DD only including performance incentives, arrears (thru redg. Post),Form 16 as per correct FNF statement, PF number (if applicable), attested copies of PF withdrawal/transfer forms (submit the forms under proper acknowledgment), ESIC card (if applicable), salary slip of all  months of employment, etc……………………by redg. Post only…….so as to reach you within and upto close of office hours of last date in office ……………..by redg. Post only.You may add that postage prepaid self addressed envelope is attached.

 

---download the HR policy/service rules and regulations a reference of which must have been made in appointment letter issued to you and also exit policy, FNF policy etc. If these are no available at some shared portal demand to supply you the certified copy in writing of course under proper acknowledgment.

Collect all awards, rewards, appreciation letters, trophies, incentives, Tgt. Vs performance criteria and data, etc………………..

 

---inform your future employer preferably in writing that your current employer is unwilling to accept your resignation and may not issue service certificate, relieving letter, NOC/NDC, FNF statement, last salary slip and has sounded you to post adverse comments, is asking you to tender notice period of 2 months against 1 month mentioned in appointment letter issued to you and you should be absorbed on the strength of notice of resignation submitted by you, proof of its  dispatch only and obtain concurrence of future employer preferably in writing.

 

>>> Provide us the following information……………

 What is this establishment: Commercial, Industrial, Small Enterprise?

What is its trade e.g. banking, IT etc?

 

The registration certificate should have been displayed near entrance, on notice board.

How many employees are employed in it? If standing orders are applicable (certified/model) these should have been displayed near entrance, on notice board and you can demand in writing of course under proper acknowledgment a certified copy and employer is under obligation to supply it even if against nominal cost say Rs.10/-. You or anyone can obtain certified copy from certifying officer (CO- that might be DLC in o/o Labor commissioner at location of redg. office of the company.)

 

You and Redg. Office of the company is located in which state?

What is your designation and nature of duties?

Has your service been confirmed in writing? Has the company increased the notice period even if by some circular, email and have you accepted it?

Are you a member of any employees unions, trade unions?

Have you signed any Non Solicitation, Non Disclosure, Confidentiality Trade Secrets /Bond/Service agreement or is there any clause on Non Compete, Non Solicitation, Non Disclosure, Confidentiality Trade Secrets etc in appointment letter issued to you?  

Has the company incurred any expenses on a Training that has added some extra ordinary skills or qualification to you? Or the training was just to enable you to handle the counters of the company?

Indian Courts have consistently been declining to impose injunctions or Non Compete clauses/agreements post termination of employment, however these clauses may very well operate during the term of employment.

 

>>> The FNF dues have to be paid on last day in office, within 3 days or  max. by usual pay day.

Service certificate has to be issue to all employees by last day in office. You may demand certified copy of service card also and also request to allow you to examine the personnel file.

 

>>>

 

If employer defaults on wages then it might default on PF,ESIC, TDS, Contribution for insurance, Gratuity etc too………………………….


Employee can approach:

>>>Inspector under Payment of Wages Act; Applicable to all employees drawing wages up to Rs.18000/pm as per def. of wages in the act……………………………….within 1 year.

Salary slip to all employees duly signed by both employer and employee should be issued. Demand salary slip(s) of all months.

You may refer to: Payment of Wages Act; Sec: 2: 3*[(i), (ia), 3*[(vi), 3, 4 ,5, 13a, 14, 15, 16, 17A, 20………….. and if the Inspector agrees to cover you may immediately submit requisite Form for recovery of wages.


>>>Inspector under 
–( Name of your state) Shops and Commercial Establishments Act.

 

Max. notice period as per this Act is 1 month.

 

One of the duties of the Inspector is to ensure that wages are paid on time and FNF of separated employee is also done properly and in time.

>>> O/o Labor Commissioner;
The Labor Inspector might also be officiating as Inspector under Payment of Wages Act, Inspector under UP Shops and Commercial Establishments Act…………………………..however you may lodge complaints mentioning the enactments separately.


----Employees Unions e. They may help you.

--- Trade Unions e.g. CITU, INTUC,BMS, AITUC etc……..


----RPFC thru nearest PF office. 
Does the company supply PF number, PF a/c slips for each year/or E Passbook? It has to.

----ESTC Inspector in jurisdictional ESTC office………….
(Applicable to all employees drawing wages up to Rs.15000/pm as per def. of wages in the ESI Act)

--- Form16: --ITO-TDS where you file ITR and jurisdictional CIT-TDS where you company files ITR. Non issuance of Form16 by deductor (employer in your case) is offence and employer can be penalized.

 

 

--DLC-Gratuity, Controlling Authority of Gratuity.

You can submit FormI one month before effective date of resignation, of course under proper acknowledgment.

----Lawyer/Law firm

---Civil Court

Employees have been contemplating to file criminal complaints u/s 406, 420……………………………and to approach employer as creditors treating unpaid wages as debt on employer, to approach HC for winding up petition.

There are many threads on it e.g;

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

 

https://www.lawyersclubindia.com/forum/Full-n-final-settlement-100310.asp#.U0AEW0eBmXU

--ITO-TDS where you file ITR and jurisdictional CIT-TDS where you company files ITR. Non issuance of Form16 by deductor(employer in your case) is offence and employer can be penalized.

 

Discuss the matter in person with local Labor Consultant/service lawyer before you proceed further.

 

 Your lawyer may opine that you as per your designation/nature of duties should be covered as ‘Workman’ as in ID Act, ‘Employee’ as in shops and Commercial Establishments Act. 

The employees that are not even workman, members of unions they also know how to defend their rights and do not get influenced by line managers, HR and defend their rights.

 

The employees that are not members of employees unions, trade unions are usually not properly informed and face harassment, exploitation.

 

IN the meantime you may find the attachments useful.


Attached File : 101964007 417759075 validity of employment bonds.pdf, 101964007 background paper.pdf downloaded: 150 times

Prashant (Lead)     07 May 2014

Kumar Doab:Thanks for your quick reply Sir!

sameer sharma (project engineer)     08 May 2014

Dear Sir, I am sameer sharma s/o d d sharma living in Noida.

I was working with Unistal Systems Pvt Ltd. ( sector - 65 ,noida) from past two years.My company transferred me to Malaysia for a certain period and i returned from malayasia on 19 feb 2014.

During my employment in malayasia a certain amount ( 600 Malayasian Ringgit ) was deducted from every employeers salary without no reason ad o proof and was said to be given to the employee after he/she returns to india.

But after returning india i gave a mail to company to return my deducted amount .i also send an sms to Company Director (Pankaj Mathur ) , but there was no response till 1 month.

After 1 month i filed a case against company in labour court ,but still there was no positive response and i also sent a mail to our client in malayasia under whom i was working.

And now its around 3 months and i did not get back my deducted salary which was around 1 lakh.

And recently i called up company director Pankaj Mathur ,he refused to talk and after calling to the Head Office Of Unistal Systems Pvt Ltd the organization people tried to harass me as why i mailed to our clients and this telephonic Conversation was recorded by me .

Pls help me with this case.

I

Kumar Doab (FIN)     12 May 2014

What is this establishment; Commercial, Industrial, Small Enterprise?
The company might have displayed its registration certificate near entrance and you can find out from the certificate easily!


 

What is its line of business e.g; IT/ITeS, Banking, Insurance, publishing, engineering etc?


 

What was your designation and nature of duties and has the company explained the duties/KRA’s in job advertisement, interview, offer letter, appointment letter or later in circulars etc and do you have copies?

 

How many employees are employed in it?

 

Were you sent on transfer/deputation to Malaysia and do you have copy of the deputation orders, agreements if any signed at that time with you, communications exchanged with you before and after the deputation?

Who processed, paid salary and issued salary slip: Indian or Malaysian Company?

 

 


Are you a member of any employee’s union, trade union?
The above information shall help, hence post it.

 

 

 

 

Record all replies (audio/visual) and keep some witness with you if possible for use at appropriate time in appropriate forum.

 

 

If employer defaults on wages then it might have defaulted on PF,ESIC, TDS, Contribution for insurance, etc too………………………….
Employee can approach:

>>>Inspector under Payment of Wages Act; Applicable to all employees drawing wages up to Rs.18000/pm as per def. of wages in the act……………………………….within 1 year.

Salary slip to all employees duly signed by both employer and employee should be issued. Demand salary slip(s) of all months.

You may refer to: Payment of Wages Act; Sec: 2: 3*[(i), (ia), 3*[(vi), 3, 4 ,5, 13a, 14, 15, 16, 17A, 20………….. and if the Inspector agrees to cover you may immediately submit requisite Form for recovery of wages.

 

All unpaid employees can lodge a joint complaint too.

 

THe deductions and amounts that can be deducted are explained in it.


>>>Inspector under –U.P. Shops and Commercial Establishments Act, 

One of the duties of the Inspector is to ensure that wages are paid on time.

>>> O/o Labor Commissioner;
The Labor Inspector might also be officiating as Inspector under Payment of Wages Act, Inspector under U.P.  Shops and Commercial Establishments Act, Small Enterprise Act…………………………..however you may lodge complaints mentioning the enactments separately.


----Employees Unions e. They may help you.

--- Trade Unions.
----RPFC thru nearest PF office. 
Does the company supply PF number, PF a/c slips for each year/or E Passbook? It has to.
----ESTC Inspector in jurisdictional ESTC office………….
(Applicable to all employees drawing wages up to Rs.15000/pm as per def. of wages in the ESI Act)
--- Form16: --ITO-TDS where you file ITR and jurisdictional CIT-TDS where you company files ITR. Non issuance of Form16 by deductor (employer in your case) is offence and employer can be penalized.

----Lawyer/Law firm

---Civil Court

Employees have been contemplating to file criminal complaints u/s 406, 420……………………………and to approach employer as creditors treating unpaid wages as debt on employer e.g;

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

https://www.lawyersclubindia.com/forum/Full-n-final-settlement-100310.asp#.U0AEW0eBmXU


--ITO-TDS where you file ITR and jurisdictional CIT-TDS where you company files ITR. Non issuance of Form16 by deductor(employer in your case) is offence and employer can be penalized.

 

 

Persue the case in labor office under the guidance of your labor consultant/service lawyer.

 

The concilliation officer may grant 3 opportunities and after say 1 month may refer the matter to labor Court.

Ajay Kumar (Manager)     25 February 2016

I am a permanent resident of UK and could not give sufficient notice to my employer before leaving the country.As a result, they did not submit my PF forms to the PF office and I am yet to receive my PF amount.  Now they are planning to sue me. They have my passport number. I have asked my relatives in India not to accept the notice sent my the employers lawyer. Can u tell me what are the repurcussion if they file a suit and I do not appear in court for the hearings. Will I be arrested if I return to India?  As this is a civil case, to what extent can it go.? The amount involved in a sum of Rs. 1 lakh. What is the best course of action? Should I pay up and settle?

Kumar Doab (FIN)     27 February 2016

Did you submit PF forms? Do you have acknowledgment?

If yes you may ask the employer to supply the acknowledgment issued by PF office for you to you by Redg. Post only and copy by email.

If employer has declined to attest the PF forms, record the declinature, in irrefutable form.

 

If you have the recored to show submission of forms and declinature then you can sumit duly attested PF forms by say Bank Manager to concerned PF office under prtoper acknowledgment.

 

You may speak to PF office.

 

Why the company is suing you?


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