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sag (xxx)     06 May 2014

Leaves adjusted against notice period

Hi,

I am working in a software company for 5 years. Due to the financial reasons company has given me the notice period for one month (as per the appointment letter, notice period is for 2 months). When i asked about the 2 months notice, they are saying that one month notice period is adjusted against the leaves accumulated (22) till date. They say that, they are neither going to encash the leaves nor going to increase the notice period. So I am loosing one month salary here and also the leaves. In the appointment letter there is no clause about the leave encashment or leaves in notice period. Can a company enforce the leaves in notice period with out the employee's will and not pay him for the leaves and the notice period? How can I proceed further on this. Please help me. Thanks in advance.

regards,

sag



Learning

 13 Replies

Kumar Doab (FIN)     06 May 2014

Your query from the language of your post is not clear.

The company has given you notice of termination or it has extracted notice of resignation from YOU?

Clear it for further response.

 

 

 

sag (xxx)     07 May 2014

Hi Kumar,

I have not resigned myself or company did not ask me to resign. Company has given me the notice of termination (1 month [of 2 months notice period] ) due to the financial reasons of the company. Now they are forcing the leave adjustment against second month (actual notice period is for 2 months) notice period and saying they will not pay for the leaves and for the second month. As per the appointment letter they have to give me 2 months notice period. Hope it is clear now.

Thanks,

sag

 

 

 

 

Kumar Doab (FIN)     07 May 2014

Notice pay and leave encashment both shall have to be paid and can't be denied.

The effective date of resignation in notice of resignation tendered by employee can not be preponed or postponed by employer.

Employee can approach lawful authority, court of law, preferably thru his Lawyer/Law firm, and/or employees unions, trade union .

 

Hope it is clear now.

 

There are many threads on similar queries e.g;

 

https://www.lawyersclubindia.com/forum/Pl-leave-enclashment-101645.asp#.U2pR0UeBmXU

 

https://www.lawyersclubindia.com/forum/Notice-period-serving-101739.asp#.U2pSe0eBmXU

 

https://www.lawyersclubindia.com/forum/Full-and-final-settlement-101715.asp#.U2pTQkeBmXU

 

1 Like

sag (xxx)     12 May 2014

Hi,

After discussing and showing the message "Notice pay and leave encashment both shall have to be paid and can't be denied."  to the management, they have agreed to give me the notice period for 2 months. But now they say that they will not pay full salary and they will pay only basic salary and other allowances (as mentioned in the clause).

The caluse is "your employment after confirmation can be terminated by the company, without any reason, by giving you not less than two months prior notice in writing or salary in lieu thereof. For the purpose of this clause, salary shall mean basic salary and other monthly allowances".

Management is interpreting the above clause as "even if employee works in the notice period, basic salary and other allowances will be paid but not the full salary". I have explained them that if the employee is asked to leave immediately, then the basic salary and other allowances for 2 months need to be paid. But they are not agreeing on that.

Please tell me if I am correct or the management. And also please explain the clause clearly for my reference. Thanks in advance.

Thanks,

Sag

 

Kumar Doab (FIN)     12 May 2014

You are not the first one to mention that just by showing the thread at LCI employers/its HR personnel/Line Managers relented and agreed to provide relief.

 

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!

YOU were located in which state?

Currently you are located in which state and does this company have an office at your current location?

The redg. office of the company is in which state?

 

 

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?

 

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

 

Do you have copy of termination notice clearance certificate, FNF statement, standing orders applicable to the company (certified), HR policy, exit policy, FNF policy etc?

 

The above information shall help you hence post it.        

 

 

 

 

 

 

  

sag (xxx)     13 May 2014

Hi,

Please find my answers below in bold.

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

software - pvt ltd company

The company might have displayed its registration certificate near entrance and you can find out from the certificate easily!

not displayed

YOU were located in which state?

karnataka

Currently you are located in which state and does this company have an office at your current location?

karnataka, company has office in karnataka

The redg. office of the company is in which state?

  karnataka

 

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

IT

 

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?

 

Software development, yes i have the copies

 

How many employees are employed in it?

 

10

 

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

  NO

Do you have copy of termination notice clearance certificate, FNF statement, standing orders applicable to the company (certified), HR policy, exit policy, FNF policy etc?

NO ( i have the copy of the termination mail )

Please explain the clause "your employment after confirmation can be terminated by the company, without any reason, by giving you not less than two months prior notice in writing or salary in lieu thereof. For the purpose of this clause, salary shall mean basic salary and other monthly allowances".

Thanks,

Sag

Kumar Doab (FIN)     13 May 2014

You have posted that:

 

"even if employee works in the notice period, basic salary and other allowances will be paid but not the full salary".

The stand is erroneous. When an employee works he/she shall be paid full wages.

 You are eligible for payment of Gratuity (Submit FormI), Bonus, Leave Encashment, PF, ESIC etc...........

 

Karnataka Shops and Commercial Establishments Act:

Sec:2(e,g,h,w),8,16,18,21,26,27,29,34, 39

Karnataka Shops and Commercial Establishments Rules

Payment of Wages Act:2: 3*[(vi) "wages" means all remuneration (whether by way of

salary, allowances or otherwise)………..

 

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.

 




>>>Inspector under –Karnataka Shops and Commercial Establishments Act, Small Enterprise Act………….

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 complaints mentioning the enactments separately.


----Employees Unions, IT/ITeS Employees Unions. They may help you.

https://www.itecentre.co.in/
https://ithiworld.wikispaces.com/News+Update
IT/BPO Voice of India | Facebook

UNITES Professionals
www.unitespro.org
https://www.wbitsa.org/
www.itpfindia.org/

https://itnitesunion.wordpress.com/author/itnitesunion/


Shiv Mahiti Ani Tantradyan Sena(Shiv IT SENA)
mankar.janardan@gmail.com

________________________________________
https://www.shivsena.org




https://www.amrc.org.hk/node/1088 CBPOP
https://www.freepatentsonline.com/article/Indian-Journal-Industrial-Relations/185430721.html
https://bpo.knowledgehills.com/Directory/BPO-Jobs/CBPOP-Centre-for-BPO-Professionals.aspx


https://www.dnaindia.com/mumbai/report-shiv-sena-forms-first-union-in-information-technology-sector-1465435
Shiv Sena forms first union in information technology sector

----Trade Unions; CITU, INTUC, AITUC, BMS…………………..and local trade Unions in your state.

 




----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.

 

 

    

 

 

1 Like

Sudhir Kumar, Advocate (Advocate)     14 May 2014

Mr Kumar Doab will keep explaining and querist keeps questioning

Kumar Doab (FIN)     14 May 2014

This is subsequent to the post of Mr. Sudhir Kumar.

Beyond this you may opt for paid consultation/service with your lawyer.

You will have to find your lawyer and settle your T&C with your lawyer on your own.

 

Labor/service law is altogether different field of law and in each city there are few lawyers that are experts in this field and usually all such cases are referred to them.

 

YOU can consult any such lawyer at your current location.

 

Your colleagues, friends, near and dear ones, relatives can guide you to a competent and experienced lawyer.

 

Dist. Bar Association (DBA) in each city maintains its website and President/Sec./Office Bearers/members can guide you to such lawyer(s).

 

You can visit the Labor Court/CGIT, civil court in person and inquire there.

 

If you wish you can search LCI databank at:

 

https://www.lawyersclubindia.com/lawyers_search/#.U3IFNkeBmXU

 


1 Like

sag (xxx)     15 May 2014

Hi Kumar,

Thank you for the help.

Regards,

Sag

 

Prashant (Lead)     11 June 2014

Kumar Doab Sir,

As per current Employer request I agreed to stay more than one month and my future employer did not have any issue regarding on that and thank fully my resignation also has been accepted  but still now they are threatening me, if I joined that particular company then they will not provide my F&F settlement dues and Gratuity I have already spoke with those people who went through in the same situation earlier and did not get their due since three month after separation from the company. They had already sent multiple mails and several phone called also made up but HR department did respond on any one of that. now they are thinking to send a mail to HR with CC to higher management(CEO) of the company, incase they will not get any positive response in certain limited time period then they will go for legal.

 

My questions are:

1. If same thing going to happened to me in future So what are the documents should I collect now?

2.What is the time limit for payment  of F&F settlement dues including Gratuity  as per law?(Please provide me the government portal link if possible)?

3.Can they really do that (Holding back dues)legal way?

 

Thanks for your support

Prashant.

 

Kumar Doab (FIN)     17 June 2014

@ Prashant,

Your query has been discussed in other thread initiated by you:

https://www.lawyersclubindia.com/forum/Employer-threatening-101905.asp#.U5_mupSSwb9

All of your queries asked in this thread have already been answered in above mentioned thread, a month back.

You have not replied in above mentioned thread to many of the questions raised and did not provide information that could have helped you.

It is up to you to respond.

 

You may record the threats (audio/visual) and approach a lawyer and provide all information to your lawyer.

 

>>>The issue that you have posted is not faced by you alone but endless number of employees as employers and their attorneys i.e. Line Managers, HR personnel violate rights, norms, rules, laws with impunity and without any fear within the walls of the offices for simple reasons that;

Employees are ill informed, are not united do not become members of employee’s unions-trade unions, do not form ‘Work Committees’ in the companies,  many of them are fearsome, do not approach Labor Consultants/service lawyers and do not agitate…………………

If employee’s are united they can negotiate service conditions, form ‘Work Committees’ that is one of the authorities as per ID Act and employers shall not be able to exploit them…………………

When union are there to represent the line managers, HR , employers shall not violate the rights of employees with impunity.

 

 

Are you aware that employees can form ‘Works Committee’ and it is an authority and President /Chairman is on rotation from employees/employer and it has equal number of employees from employer/employees?

 

The Industrial Disputes Act, 1947

CHAPTER II: AUTHORITIES UNDER THIS ACT

3. Works Committee

 

All affected employees may join hands and approach a competent and experienced Labor Consultant/Service lawyer along with all docs on record and give inputs in person.

 

 >>> The Indian Courts of law have consistently been declining to grant injunctions and enforce Non Compete Clauses/Agreements as it hits right to earn livelihood and clauses of Indian Contracts Act………………….

 

 You may go thru many threads that may be relevant e.g:

 

 https://www.lawyersclubindia.com/forum/3-notice-period-relaxation-advice-103873.asp#.U5_b75SSwb8

https://www.lawyersclubindia.com/forum/Notice-period-102337.asp#.U5_cl5SSwb8

There are many threads on Gratuity at;

 

 

https://www.lawyersclubindia.com/forum/display.asp?cat_id=9&forum_id=49#.U528spSSwb8

Sudhir Kumar, Advocate (Advocate)     17 June 2014

well elaborated by Mr Kumar Doab.  Nothing more to add.


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