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Smita_L01042008 (student)     26 May 2014

Full abd final settlement

Good morning to all,

 

Please advice legal provide with reference to following point:

1. Is there any stipulation of time under applicable law for settlement of full and final payment of employees either on termination or  resignation?

2. Does employer has right to deduct any amount from provident fund of employees?

3. If there is clause that employee should not join competitors till period of 6 months from termination / resignation of company, but the employee joins the same, then what will consequences of the same? can company take any legal action against such ex-employee? under which provision of law?

 

Thanks



Learning

 8 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     26 May 2014

There is no stipulated time. As per employement cotract terms & condition to be followed by both the parties. No rights to dedeuct from provident fund.It is purely employees property.Yes there can be a clause not to join with competittors.

Smita_L01042008 (student)     26 May 2014

Thank you Mr. Ramacharya for your prompt reply. Please advice what kind of action the compnay can take against ex-employee if he joins competitor in spite of clause in agreement? Further, if the compnay is not making payment of salary to employee or payment final claim of employees omn resignation, what are recourse available to such employee?

 

Thank you in advance

Kumar Doab (FIN)     28 May 2014

1.    Effective date of resignation/Last day in office………………………….or within next 3days………..max. by usual pay day.

2.    NO.

Indian Courts of law have consistently been declining to enforce Non Compete Clauses/agreements, post termination of employment,  as it  hits Right to earn livelihood and provisions of Indian Contract Act……..............

 

Subhendu Basak (Sr. Engineer-Electrical)     28 May 2014

Dear Sir / Madam,

Kindly advice in respect of following :

1. My employer issued me 01 month notice and I have served the same.

2. My last date of working was 23.03.14 ( After serving notice) .

Ins spite of several mail reminders my full and final settlement is not paid. Kindly advice what should I do. 

Regards, 

Subhendu Basak

 

Nickel Choudary (Manager)     29 May 2014

Dear All,
 
I Started working in a company in Chennai since November 2013. A week ago my employment has been terminated by company saying that i have not performed well on my duties hence my work is no longer required for the company. While i asked in detail, My HRM replied, You have  given a target to achieve but you failed to do that that is why they are terminating my employment. But as per my designation, my Duties are only to handle the smooth operation not to go for sales target. And there are no records that target has been given to me. At last after several request i have received a letter of termination from my company saying the above said reason. Unfortunately it was a sudden termination without any notice period nor any salary in advance. I have made so many request to HRM asking for clearing pending dues and full and final settlement. But none of mails have been responded. Expect offer letter from the beginning and the termination letter at last i did not have any of the company document with me. Employment with this company is not more than 6 Months for me and probation period of my employment with appointment letter is not given to me. 
In this case, please advice the rights of me to file a case against my employer for sudden termination and clearing pending dues. My company is a reputed resort limited located in Chennai. 
 
Thank you 
 
Your's Hospitably, 
Srinivasagam M

Kumar Doab (FIN)     29 May 2014

Srinivasagam ,

>>> Are you a member of any employee’s union, hotel employee’s unions,, trade unions?

Is there any ‘Works Committee’ in your company?    

 

 

>>> You have posted that:

----“A week ago my employment has been terminated without any prior notice.”

The termination order was verbal or in writing?

Did you and your colleagues record the meeting (audio/Visual)?

Did you and your colleagues submit minutes of meeting by say email?

----“During my employment, I was agreed to pay sum amount of incentives based on the revenue achievement which was successfully achieved and incentives were not paid since i joined not only to me for all the employees including current and those who were gone out.”

Was this incentive and conditions communicated in writing?

Do you have performance record in writing?

Did you and your colleagues cover non payment of incentives in minutes in writing by say email?

 

----“Except my offer letter from my Human Resources i have not received any document related to my employment, A day ago i have requested for payslip which was requested in my present interviews, My HRM did not give any response to my emails and telephone calls for the request pay slip.”

Payslip has to be supplied at least a day before the disbursement of wages and should be signed by employer and employee and employer has to retain the record for at least 3Y.

Payment of Wages Act; Sec:13A

Minimum Wage (Central) Rules, 1950, Rule 26(3)(4)

And provisions for record/registers/forms/formats for record of wages paid as in……………. (Name of your state) Shops and Commercial Establishments Act, and  (Name of your state) Shops and Commercial Establishments Rules…………………………

 

 

----“While i went to meet HRM directly i was stopped at the security personnel and he said that you are not allowed inside to meet HRM , which was instructed by HRM.”

Did you record it (audio/Visual) and followed by minutes even if by email?

 

----“ At this situation after numerous request made to HRM i was totally humiliated by the way i have been treated and looking forward to file a case against HRM/HRD. “

Your lawyer may opine to include their names in list of noticees.

 

----“As far as my knowledge i beleive management will respond to my queries and request but my requests are not being forwarded to the notice of management. “

You may write to appointing authority, MD, Chairman if they received your communications and mention that these are attached, and ask them to inform you the action taken by them………….

 

----“Please advise me how to proceed further legally as it is not only happens to me , few of my colleaguesare having the similar situation to face.”

All of you may join hands and stand as a witness to each other.

 

----“I am looking for legal consultant to proceed legally in Chennai,”

Your near and dear ones, colleagues, can guide you.

If you wish to avail the services of LCI lawyer you can conduct search at;

 

https://www.lawyersclubindia.com/lawyers_search/#.U4dTE0eBmXU

You shall have to settle your T&C with your lawyer on your own.

 

 

 

Generically speaking in case of non payment of wages/Dues 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.
All employees can lodge a common complaint for recovery and Inspector may issue FormN.

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 –Shops and Commercial Establishments Act, Small Enterprise Act………….whatever it is.

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 Karnataka Shops and Commercial Establishments Act, Small Enterprise Act…………………………..however you may lodge separate complaints mentioning the enactments separately.


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



You should contact a labor consultant/service  lawyer and may proceed under the expert guidance of your lawyer. The lawyer that has seen all docs and examined the inputs in person can advice you the best.

If the employer has not been paying wages it must have defaulted on PF,ESIC, TDS too......................and in such a case the regulators can be approached.

 

PF; thru RPFC in nearest PF office

 

ESIC; Thru nearest/jurisdictional ESIC office.

 

TDS; ITO-TDS where employee files ITR and CIT-TDS where employer files ITR. Employer can be penalized for non issuance of Form16.

 

  

Nickel Choudary (Manager)     30 May 2014

“While i went to meet HRM directly i was stopped at the security personnel and he said that you are not allowed inside to meet HRM, which was instructed by HRM.”

Did you record it (audio/Visual) and followed by minutes even if by email? Yes I did! I have a video record of the security who mentioned the same reason to me.

 

----“ At this situation after numerous request made to HRM I was totally humiliated by the way i have been treated and looking forward to file a case against HRM/HRD. “

Your lawyer may opine to include their names in list of notices.

 

----“As far as my knowledge I believe management will respond to my queries and request but my requests are not being forwarded to the notice of management. “

You may write to appointing authority, MD, Chairman if they received your communications and mention that these are attached, and ask them to inform you the action taken by them…………., I have marked cc to my board of directors & awaiting reply

 @ Mr Kumar Daob, 

 

Thank you very much for your stint responding to me. I find this website very helpful and useful. ----“Please advise me how to proceed further legally as it is not only happens to me, few of my colleagues are having the similar situation to face.”

All of you may join hands and stand as a witness to each other. It might happen, practically as I am single and except me all are having family to take care of. Obviously they are busy in finding their next job. However I will do my best in the same.

 

----“I am looking for legal consultant to proceed legally in Chennai,”

 

Your near and dear ones, colleagues, can guide you. I got it, Thank you Sir

Your's Hospitably, 

Srinivasagam M 

Kumar Doab (FIN)     30 May 2014

You have done well by recording the audio/visual. 

 

Your query has been discussed in detail in this and other thread posted by you at:

 

https://www.lawyersclubindia.com/forum/Company-is-not-paying-my-salary-expenses-please-suggest-102899.asp#.U4iXckeBmXU

 

Approach your lawyer.


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