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rohitmayoo   04 April 2015

Legalnotice from employer : offer terms breach, absconding.

Hello Experts,

Please advise...

I joined a company XYZ in pune(m.h.) and after working for 3 days I realized the work was as per my expectations. So I dropped an email
to hr that I won't be coming ahead and informed them in written to collect the office inventory/asset that was allocated to me from my work location.

Two months later I recieved a notice from advocate of the company stating that I have breached the clauses of the appointment and non disclosure agreement which I have signed. I was called upon to either serve notice period or pay them money in lieu of notice. Also threatend to
file a FIR of theft, as they assume office inventory is still in my possession and was not handed over in a proper way with sign off.

Queries:

1) Can an employer demand money or notice if they have not paid any salary / money.
2) Can there be a theft case, as I have kept the inventory in work location and informed them after that.

3) What should be the further course of action from my behalf.




Regards,
Rohit Mayoo



Learning

 10 Replies

Kumar Doab (FIN)     04 April 2015

 

HOPE YOU WILL TAKE THIS POST POSITIVELY!

 Such conduct of  bosses/companies is not a new or unknown thing.

 

 

Once again the question arises: “Why Employees continue to suffer with such tantrums/transgressions by employers and their CRONIES/ATTRONIES in Line/HR Managers????

Because Employee’s find it shameful to unite, form unions/Grievance Redressal committee/Works Committee, affiliate with trade unions, retain access to an able Labor Law Consultant/service Matters lawyer/Law firm!!!!!!

Majority of the employee are ill informed and ill informed employee is susceptible to exploitation.

 

 

 

Your able Labor Law Consultant/Service Matters Lawyer/Law Firm may like to go thru the language of job advertisement, job application, interview call letter, offer letter etc, break up of the salary mentioned in etc….verbatim………………and even your communications by email……………. For building favorable written record use at appropriate time in appropriate forum.

 

 

 

 

 

 

 

 

You may reply pointwise to each point:

1.  Do you have copy of resignation? Did you mention what was not acceptable/conducive/workable/unacceptable to you  in the company? Did you get acknowledgment and acceptance of resignation, FnF statement showing computation of salary to be paid/adjustment of notice pay/ salary slip showing computation of salary of 3 days, ,service certificate,Relieving letter,  etc,?

You may demand to supply all of these documents.

Was any communication between the date of your resignation by email and legal notice by lawyer) asking you to join office/handover-sign off/declinature to accept resignation/to declare you absenting-absconding supplied to you?

 

Was any offer letter and appointment letter issued to you? Did you sign and accepted it?

What was signed by you on Non-Disclosure:::: Non-Disclosure clause in appointment letter or agreement? Do you have its copy?

Have you in any sense breached the Non Disclosure clause/agreement in any sense on record?

If charge of Non Disclosure has been leveled and can be proved then you have a catch there.

If you are unable to draft your communications and handle the matter on your own seek help of elders in the family, Union leaders, labor Law consultant/ service matters lawyer. Narrate all representations made so far and address to good offices of appointing authority,MD,Chairman.

 

2.    Are you a member of Employee’s/Trade Unions

Does your company have any GRC (grievance redressal committee) and ‘Works committee’?

 

3. What is your designation and nature of duties? How many people were reporting to you? Did you have any power to employ,terminate,sanction leave (or recommend ……but clarify) ,grant increment etc?


4. What is your salary: Basic,DA.

5. What is line of business of company e.g.: IT/banking?


 

 

6.  Your reporting office was located  in which state?

 

 Regd. Office of the company is located in which state?

How many people are employed in the company?


Does the company have its CSO (certified Standing Orders) and does it cover your designation or do Model Standing orders apply to it?

 

 

The company is registered as: Commercial or Industrial establishment?

 


What is the notice period inserted in appointment letter issued to you?

 

 

You may reply pointwise to each point!

 

It may be possible to revert to your query.

 

You have certainly not acted in a proper manner. Employee should always act properly and consult elders in the family, competent and experienced well wishers, Employee’s/Trade Unions leaders/Labor Law Consultant-Service matters lawyer before acting on his/her own and thus do not fall in legal traps.

Try and get recorded acknowledgment even if by phone/email/witnessed (audio/visual) that the office inventory/assets were found at workstation and collected in office and only thing that is pending is that some so called ‘Sign Off’ is required. If anyone admits that all assets were left in office and collected then the company is obliged to issue an acknowledgment that it was not taken out of office by you.

If the workstation is CCTV covered then the footage can be checked and called for. If Security Desk/Guard frisks/checks then he/she has to report that office assets were found on persona of employee while leaving office.

The companies are increasingly becoming intolerant to such irresponsible behavior and become adamant to penalize the employee. HR personnel on their own or due to employer’s internal (published/unpublished) policy for them, want to teach unforgettable lesson to employees that conduct themselves in such manner.  

 

 

1 Like

rohitmayoo   04 April 2015


1) I do have email of resignation which mentions the work doesn't interest me. The employer didn't pay me any salary or FNF also no experience letter. I don't want an experience letter for 3 days though.There is no acknowledgement of resignation email also no relieving letter.

The employer emailed me between period of notice and resignation. To complete the formailities. But I dont want to serve a notice for
such a small tenure of 3 days.

Offer letter was released and I signed and accepted. I signed non-disclosure document but I don't have a copy with myslef. There were many
clauses which I don't remember.


2) I am not part of any employee union.Also no grievence committe as its a small firm.

3) I was working as individual contributor. No one was reporting to me.

4) Cannot disclose salary

5) I work for software/ IT industry.

6) Company based in pune(m.h.) 50-60 employees. No idea about CSO.

7) Notice period mentioned is 2 months.

8) The work location is cctv covered.

Kumar Doab (FIN)     05 April 2015

Since legal notice has been issued to you it shall be appropriate if the fitting reply is submitted thru your lawyer, IN TIME…………..and you may show all docs/communications on record as already narrated in previous posts……and help your lawyer to ascertain if job advertised,discussed,offered and provided differed.

Even if you don’t want or require relieving letter you must demand all docs and payout for 3 days of service as already explained in previous posts.

You have posted that employer emailed you to complete the formalities.

There is nothing wrong in asking to complete the formalities and completion of formalities by you and this may involve the signing of few formats  of handover copy of which can be retained by you.

In these emails was any charge of theft/OR that you have not submitted company assets…………… leveled on you? If NO how the company’s lawyer arrived at charge of theft of company’s assets by you. Moreover the work station is CCTV covered and it must show that you left the assets at workstation and duly communicated by email.

You alone would know if you violated the Non Disclosure agreement and how?

The company has to supply the certified copy/original of the agreement to you.

Notice Period: Such companies are covered in Maharashtra by Bombay Shops and Commercial Establishments Act. You may go thru def. of ‘Employee’ in the Act and Sec38-B,66…….

The notice period for 3 days of service is NIL.

The standing orders apply if no. of employees is 50 or more. If standing orders are not certified (CO) Model Standing Orders (MSO) shall apply and you may go thru def. of ‘Workman’ and also Sec:13-18.

The notice period during probation period is NIL and after confirmation of service is 30 days……..and service certificate has to be supplied to all employees and FnF wages have to supplied on last day in office or max. by usual pay day.

NO company can violate these enactments and employer personally is held responsible for faithful observance of standing orders.

 

Your lawyer can opine if state government of Maharashtra has granted any exemption from standing orders to your company/trade……………………and that you might be covered by def. of ‘Employee’ and ‘Workman’…. 

FREDYCHARLES RK - Bangalore (Advocate)     05 April 2015

Hi Rohit,

First of all , for any permanent job there has to be  a "probation" period and seperation from eitherside during probation normally happens with a "NO" notice period. Please don't say you dont have a copy of your appointment letter,T&C , NDA copies etc. Did you surrender all your assets? Did you mail your resignation or submit on the portal/SAP system? What is the theft alleged for a 3 days stint? 

Nevertheless, you have a strong case to rebut and make those employers eat their dust. I echo the views  given above and  It is high time employees should raise their voice. 

1. Give a fitting legal notice reply and do explore the options of filing a complaint in nearest police station under the ingredients of IPC 195-A,120-A,120-B,500,503. 

2. What NDA is talked about for a 3 day service? Are they alleging breaching of NDA? 

3. The labor court and consumer forum are good places for remedies.

Let me know if you prefer to talk to me? 

rohitmayoo   05 April 2015

The NDA states I shall hand over office assets to my supervisor in case of resignation/termination. In my case the companies assumes that the asset was not handed over to supervisor, so the assets are still in my custody and the charge is made based on  not following the NDA clauses. I have dully informed the supervisor in my resignation email that the asset is in my work location.
 

 

 

 

Kumar Doab (FIN)     05 April 2015

In your first post your have stated that you have sent your resignation by email to HR.

In your last post your have stated that you have sent your resignation by email to Supervisor.

In your second post your have stated that you can’t disclose your salary.

In your second post your have stated that you don’t have copy of NDA.

In your last post your have quoted from NDA.

You have not replied to “In these emails was any charge of theft/OR that you have not submitted company assets…………… leveled on you?

If in all of these emails company was asking to come for ‘Sign Off’ it implies to sign exit/handover forms.

While you approach your lawyer don’t conceal anything.

Since you have resigned in writing, hence  ‘You have not absconded’. The emails sent to you for sign off are implied acceptance of resignation.

The moment employee has resigned he/she has ended the employer-employee relationship.

The charges can’t be pressed on assumptions. If you have written to both HR/Supervisor or any one of them that assets are at workstation then it is their duty to check and write (truth or lie) that assets were not found. You can also ask to substantiate with CCTV footage of the day or lodge police complaint and let the police go thru footage or let the court order it……………… before the footage is deleted.

The onus of defense is being transferred on you.

Better approach your counsel.

In your trade now there are many IT/ITeS employee’s unions and have affiliated with trade unions like CITU/INTUC/AITUC/BMS etc………………In Maharashtra Shiv Sena had floated a separate unit for IT employees……..You can approach them too.

 

 

Do your homework and reply to the legal notice preferably thru your lawyer.

rohitmayoo   05 April 2015

I would like to thank all of you for your suggestions and replying to this thread....


Dear Kumar Doab,

When I sent resignation email, it was  to - hr and cc-manager. Addressed both of them and informed both of them.

Regarding salary part the company is asking for gross salary of two months not just basic.

I have quoted the statement from NDA because the same clause is mentioned Legal Notice which I received.

There was not any charge of theft on emails. It only mentions to complete formalities. The threat of theft charge is in legal notice. If I fail to hand over the asset formally ( note asset is not in my custody its in my work location) then in that case FIR will be filed.

I will definitely seek lawyers help as recommended.
Thanks...

Kumar Doab (FIN)     05 April 2015

 

You have posted that:

The threat of theft charge is in legal notice. If I fail to hand over the asset formally then in that case FIR will be filed.”

 

The date of payment of earned wages is fixed and employee can lodge a complaint the moment payment of earned wages is delayed even if by a day and employer may be penalized monetarily also say Rs.7500/instance. The salary slip has to be supplied atleast a day before disbursement of wages and should be signed by both employer and employee.

Your counsel may opine that you can lodge criminal complaint against employer/HR/supervisor :

 

--u/s 406,420 for not paying you the earned wages on promised day. The date of payment of wages is also defined in the enactments already mentioned.

--for attempting to extort monies from you in the name of notice pay , by falsification of record e.g. insertion of notice period/pay @.........

Your lawyer can also turn leaving job in 3 days, leaving  so called assets at workstation in your favor, you may show the documents as already suggested………………….

It must have been a compelling reason for employee otherwise who will leave in 3 days.

You must have spent monies on recruitment: surfing to see advt, preparing application,travelling to post it, sending it,making/attending calls, buying perfurme/deo/tie,attending interview etc……..Was the expense to attend interview refunded? If not Why? After all good and hard earned  money is lost!  

  

Your able Labor Law Consultant/Service Matters Lawyer/Law firm may ask you a set of structured questions and may opine that  you shall be covered by the def. of Employee/Workman.

If notice period applicable to 3 days of service or under probation is NIL then there is no questions of notice pay at all.

Moreover rate of notice pay is also stated in enactments mentioned in previous posts.

These enactments being Act/Instrument of Law/Statue shall prevail upon any private agreement/rule/policy drafted by employer e.g. appointments letter/contract of employment/HR policy/Service Rules and regulations and your NDA as well.

Employer and establishment and its cronies in Line Management/HR/Legal cell all are subordinate/inferior/servant to the law of land and rights of citizens of republic of India.

 

Believe it that trade Union leaders know precise ways to drill sense into the heads of such personnel.

Become a member. Go thru ID Act.’Works Committee’ of employees (president is from employee’s side) is an authority.

Your counsel may opine that…………………..The employer can send its so called format of so called ‘Sign Off’ by Registered Post and you can send it back……………..before /after your docs and dues are supplied to you, as you may wish………………………and you can proceed against this lawyer also.

 

If you have signed this so called NDA and can be troubled to such extent due to your signatures …………………………then you don’t require any signature of employer since it is sworn duty of Employer, establishment and its cronies in Line Management/HR/Legal cell……………………as  all of them are subordinate/inferior/servant to the law of land and rights of citizens of republic of India......................and can not indulge in anything that is unlawful,illegal,coercion,intimidation,pressure,forceful. etc...

rohitmayoo   15 April 2015

I had to buy out the notice as I was not intending to fight a case. I have to travel abroad in some time and with a legal proceeding It will be difficult to move out of India.

The lawyer suggested If I would have fought the case then the impact would be very less but due to career impact and other responsibilities i have to make this decision.

Kumar Doab (FIN)     18 April 2015

You can succeed to recover any amount that was not due to be paid by you but was collected from you.

More so if it was collected under coercion, intimidation,threat,pressure your lawyer can advice you how to proceed.

 

You can authorize anyone to represent/appear on your behalf including unions leaders/family member/lawyer etc...


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