F&f settlement dispuite

Mr. Bhatia,

You can approach the Legal aid services authority in Bangalore and availa of free legal aid services in this regards and fight against your son's employer legally and get the desired relief.  Advocate Kalaiselvan

It shall be appropriate to show all docs including but not limited to job advertisement, interview call letter, selection letter, offer letter, appointment letter, standing orders applicable to the establishment, communication for deployment to Belgium, CTC sheet/Wage list for deployment, leave policy, notice of resignation and its acceptance, FNF sheet, any service agreement etc to your lawyer and let all representation be drafted by your lawyer. The lawyer that has seen all of your docs can advice you the best. 

You have posted that:

-------“My son was working for a Bangalore based company and was deployed to Belgium for assignment. “

“The jurisdiction for disputes is in Bangalore.”

Does it imply that employee was located abroad by order of transfer or deputation and appointment letter was issued by employer in India?

Where was the salary processed and who paid salary and issued salary slip: Indian or Foreign entity? Salary slip, Form 16 as per correct FNF statement of all months should be obtained.

If the FNF statement is incorrect employee should decline o accept in writing and point out errors and that funds have been transferred by employer on its own without getting acceptance from employee and funds are received under protest.

-------“He served the statutory notice for the required period but the acceptance of resignation was preponed,”

To whom the notice of resignation was submitted: appointing authority in establishment in India or competent authority in Belgium and who has issued acceptance of resignation?

The resignation can not be accepted before expiry of notice period/date of retirement chosen by employee.

Supreme Court of India

Nand Keshwar Prasad vs Indian Farmers Fertilizers

11. After giving our careful consideration to the facts and circumstances of the case, it appears to us that the law is well settled by this Court in a number of decisions that unless controlled by condition of service or the statutory provisions, the retirement mentioned in the letter of resignation must take effect from the date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date when the employee concerned did not intend to retire from such earlier date. It has also been held by this Court that it is open to the employee concerned to withdraw letter of resignation before the same becomes effective.

It is up to employee to call back the acceptance of resignation, to service full notice period to get salary for the period till expiry of notice period, agitate for unfair acceptance of resignation, or collect the notice pay for shortfall in notice period………………….. and other loss suffered as stated by you…………..

The pay day for FNF amounts is usual pay day. If employer has delayed it is its and it’s HR’s wrongdoing.

Employers should encash the paid leave in FNF and also add notice pay to be paid by it in FNF statement/settlement.

What is this compulsory paid leave for infectious deceases? It is not understood. You may show the leave policy to your lawyer.

The exchange rate of date of disbursement should be applied.

The state of Karnataka had ended the blanket exemption granted to IT companies and all companies were to submit draft standing orders by Dec12 for certification by certifying Officer by Mar13. Till certification Model Standing Orders should apply.

IT companies are covered by Shops and Commercial Establishments Act.

Designation alone does not decide employee is covered as ‘Workman’ as in ID Act and as ‘Employee’ as in Shops and Commercial Establishments Act………………

You may submit a final NOTICE ( drafted and structured by your lawyer) to Good offices of appointing authority, MD, CEO, Chairman, Company Secretary, by letter thru redg. post highlighting your good conduct achievements and narrating all representations made by you so far by phone, emails, in person (mention dates, phone numbers, names/designation/dept of company’s officials,………….) and conclude that company has breached the contract and raise the demands…………………and demand reply and payments by bank DD within say……………………next 7 days by redg. post.

If good offices do not provide relief employee may issue legal notice by your lawyer and legal notice from your lawyer may drill sense into the heads.

The employee  may approach 

Trade Union Leaders

and thru lawyer/Trade Union Leaders as the case may be may approach

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

Inspector Under Karnataka Shops and Commercial Establishments Act ( One of the jobs of Inspector should be 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)

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

Your lawyer may ask set of structured questions and can opine that employee would be covered as ‘Workman’ as in ID Act and as ‘Employee’ as in Shops and Commercial Establishments Act or not and which would be appropriate forum to agitate……………….

You have to settle your terms with your lawyer on your own.

Dear Sir,

Tks for your valued advice but would like to know whether legal aid cell is rendering the aid to anybody who seeks for it or is provided to persons who can ill afford to engage a lawyer due to poor economic condition.

Attached.

Learned friends,

I have not been able to lay my hands on any authority to support the plea that the exchange rate prevailing as on the date of disbursement of full and final settlement should be applied while making payment of F&F settlement amount,  as has also been agreed/endorsed by n Kumar Doab Ji in his valued advise given earlier.  I intend to take up the matter at the level of complaint to the authority under the shops & establishment Act, Karnataka, since in my view taking up the latter through an advocate will not be commercially viable option, looking to the amount involved in the issue.  At the same time, being a totally unjust action on the part of employer, this cannot be ignored as well.  I think a complaint from my son should suffice to initiate the action and hoping against hopes, it may result into some positive action.

With regards; i m bhatia 

It is believed that the employee had affirmed to hand over charge and nothing was due at his end.

If the employer has by his sweet will accepted resignation before expiry of notice period and abruptly terminated the employment and did not ask for any handover of charge/company property/NOC/exit formalities etc, it should construe that nothing was pending at the end of employee.

Once the matter is before the lawful authority, court of law it is its pleasure to decide the reasonableness of the matter and reasonable amounts……………..

The employee can not accept the contentions of the employer that the delay of 5 months (Apr-Aug) is justified.

Employee may contend that although proper notice of resignation was served he was removed although there was no reasonable cause /misconduct on his part……………………

Consult your lawyer if employee would be eligible for compensation @ one month pay for each year of service as mentioned in Sec 39(3)……………….

You may carefully go thru:

Chapter V; Wages and Compensation: Application of Payment of Wages Act;

The State Govt has the right to apply Payment of Wages Act 1936 (Central Act IV of 1936): to all or any class of employees and their employers……………… 

Thus Payment of Wages Act 1936 (Central Act IV of 1936): should apply to your son and you should be eligible to approach the Inspector under this enactment also..

You may carefully go thru the provisions of Payment of Wages Act 1936 :

e.g;

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.- (

13A. Maintenance of registers and records

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

The day for FNF wages is last day in office, or within next 2 days or max. by usual pay day……………..

In any of the enactments there is no provision for holding back of payment of wages………………Failure to pay wages by 7^th of the next month amounts to non compliance and invites penalty.

If you succeed in getting the penalty levied on employer that shall a default and lapse at the end of employer, on record. The penalty may be Rs.7500 per incidence…………………….

The employee may agitate for full wages as earned before tendering notice of resignation for full notice period, interest on delayed payments, leave encashment, rate of conversion on effective date of actual payment in bank a/c………………………..and any other amounts those were payable to employee………………….

You may go thru Karnataka Shops and Establishments Act:

Sec:2 (G) (h), 6A, 15, 18, 21, 26, 27, 29, 30, 34, 39 and 39(3) (7) especially, ……………….

The leave including PL is as per the enactments applicable to the establishment, negotiated bilateral settlements, standing orders, offering better benefits…………………You may refer to these too.

Internationally also the time for payment of FNF wages is last day in office, within next 2 days or max. by usual pay day.

You may go thru the details for employment and separation as in Belgium and others……………..

https://www.vdab.be/english/Working%20and%20living%20in%20Belgium.pdf

7.1.3 The end of a working relationship

https://www.las-elc.org/factsheets/final-paycheck.html

1. Final pay when an employee is fired or laid off

2. Final pay when an employee resigns from a job

https://www.peoplesmart.co.nz/UserFiles/DairyNZPeopleSmart/File/Legal%20

requirements/Factsheet%20Entitlements%20on%20resignation%20and%20termination.pdf

Entitlements on resignation or termination

The final pay should be paid no later than the next regular pay day. If you wish, you can pay the final pay earlier than this, for example, on the employee’s last day.

Mr Kumar Doab has explained well.

repeated at https://www.lawyersclubindia.com/experts/Full-final-settlement--422696.asp#.UjrdIH_Qzmk