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Kailash kumar (NA)     08 November 2013

Need help to get full & final.

Hi, 

At the time of resign I was told that I've to pay an amount of my basic pay (Rs 2600) to the company instead of 30 days notice period but now company is asking for the full month take home salary which was Rs 11000.

I've worked with the organization (BPO) for 15 months at noida UP, Conditions are not clear on my appointment letter. It says 30 days salary. The company is listed on 'Nascom'

Please help me with the options available for me?


Thanks



Learning

 9 Replies

Kumar Doab (FIN)     08 November 2013

  

 

If notice period/pay is not stated in appointment letter you may claim it is not applicable in your case.

 

 

Or

 

There is some confusion in understanding and interpretation of clauses in appointment letter issued to you.

 

>> Notice period/pay is part of service conditions stated in standing orders applicable to the company (Certified/Model), statue, appointment letter/contract of employment…………and is also stated in Shops and Commercials Establishments Act of the state.

 

 

BPO companies are covered by Shops and Commercials Establishments Act.

 

Since company and you are located in Noida you may look into UP Shops and Commercials Establishments Act which might be available at the Dept. of labor website of UP or you can buy the latest version from market.

“20.  Termination of employment by an employee.—(1) No employee, other than an employee engaged for a specified period or in a leave vacancy, shall terminate his employment, except after notice of thirty days, or of such longer period, as may be required under the terms of his employment.

(2) Where an employee fails to comply with the provisions of sub-section (1), his unpaid wages for a period not exceeding fifteen days may be forfeited to his employer.”

 

 

>> Since the employer disburses OT, leave encashment, Bonus, Gratuity etc @ Basic+DA therefore it is believed notice pay should also be @ Basic+DA. In case of private establishments as Da is not granted so it should be Basic.

 

The UP Shops and Commercials Establishments Act also suggests Basic Pay therefore it should be Basic Pay in your case.  

 

You may go thru:

 

6.  Hours of work and overtime.

 

Since there is a weekly holiday/off day (e.g. Sunday) the employee works for 26 days in a month but weekly off is also a pay day.

Hence to arrive at 1 days’ wages monthly wages are divided by 26.

 

 

>> Are you aware at what rate the employer tenders notice pay if it terminates the employment.

 

The conditions in the appointment letter should be equitable.

 

Go thru your appointment letter carefully and show it to elders in the family, competent and experienced well wishers, trade union leaders, lawyer/law firm and proceed under their expert advice. Let them draft your communications to the company.

 

>> Instead of making the payment of notice pay by cheque/DD/cash, affirm in writing that notice pay (if applicable) and stated at clause number …………….. in appointment letter dated……………….. issued to you be adjusted in FNF statement and correct FNF statement be supplied to you by redg. post only for verification and acceptance.

 

Or let the company demand in writing the payment of notice pay from you.

 

>> The employer should  provide the acceptance of resignation, service certificate, relieving letter, service certificate, correct FNF statement, payment of FNF dues, form16 as per correct FNF statement, PF number, PF a/c slips for entire tenure of service, ESIC card , salary slip of all months of employment…………………

 

If FNF statement issued to you is incorrect you may point out the errors and decline to accept the FNF statement and settlement in writing.

 

 

>> What exactly you wish to specify by mentioning that “The Company is listed on 'Nascom'”?

 

Has the company stated in appointment letter that the new joiner/employee shall have to register with Nascom or at NSR or Nascom?

 

Have you registered your profile at NSR?

 

 

 

 

 

 


Attached File : 558733596 se act up.doc downloaded: 107 times

Gaurav (Research Manager)     10 November 2013

Hi,

I worked with a US based consulting company for 16 months between April, 2012 and July 2013. The company approached me through someone in India.  Few months after joining the company, I realized that things were going in wrong direction. However I could not leave the company as they did not give me the new offer letter and the salary slips. Several times I asked them to give me the documents so that I can find another job but they kept me telling that many projects are in pipeline. Finally they got a big project. The project started in March. I got an appraisal in April. However on 1st May I did not get the appraised salary. I kept traveling for the project and kept spending money from my pocket. From June they stopped me paying salary. And from March they did not pay me any reimbursement. On 10th of June I was told that the company does not have much money so I should find out a job, however I should complete the project first. I was forced to travel on my own expenses and it was told to me that if the project will be completed successfully and the client will release the remaining money I will get my dues. I kept working in order to get my documents which were essential to join a new company and in hope that they will pay my dues after the client will release the payment. In July they got Rs. 12.5 lakh  from the client but they released the salary of May only. Still my reimbursements from March to July, My salary of June and July and settlement for paid leaves is pending. Initially they were telling that they are arranging for the money but now they have stopped replying my mails. There are two people in India at Director level however now they are saying that they are no more associated with the company and they can not do anything about it. Two promoters of the company are based in the US. They are taking advantage of being based in the US. Since now almost 3 months are over and I have done everything from my side (emails, phones) but nothing worked I am approaching you.

Please let me know what should I do in this situation.

Thanks and Regards,

Gaurav

Kumar Doab (FIN)     11 November 2013

@ Gaurav,

 

Always initiate a new thread.

Hope you shall take it positively.

 

You alone are at fault.

You have given very long rope to this employer. Our hunch is that you are dealing with expert deserters.

 

The employee seeks an employment to earn wages from employer and not to loose.

 

In your case instead of getting you have been paying salary and expenses to employer.

 

 

First of all without any delay you may narrate all representations made by you so far by email/phone calls/by letters/in person………….(mention phone numbers, dates, names, address etc………..) and that you are unable to manage to attend to the office and job anymore…………………..and mention in the same the total amounts under each head that the employer owes to you………………… and keep this intermediary also in the loop.

 

The question arises that the employer shall agree that you were employed or not and it may pull the matter by claiming you were only being consulted etc…………..and the onus of proving the employer-employee relationship may fall upon you.

 Record all calls and meetings (audio/visual).

A competent and experienced labor consultant/service lawyer may ask you a set of structured questions and can opine that whether you would be covered as ‘Workman’ as in ID Act and as ‘Employee’ as in Shops and Commercial Establishments’ Act of the state, or not.

 

 

 

You may not be able to approach Inspector under payment of Wages Act if your wages as defined in the Act are above Rs.18000/pm.

 

In the absence of coverage under these enactments you may have to approach a civil court for recovery of your dues.

 

The lawyer that has seen all of your docs and has analyzed your inputs can advice you the best. Your lawyer may opine that limitation period of 3Y may apply in your case.

 

 

The employee(s) can approach as per their coverage by enactments:

 

>> Lawyer/Law firm: The legal notice can help to drill sense into the heads.

 

>>Trade Unions: The Leaders know the precise ways to handle such matters.

 

>> Inspector under Shops and Commercial Establishments Act of the State…………One of the duties of the Inspector is to ensure that the dues of the separated employee are paid.

 

 

>> Inspector under Payment of Wages Act (Applicable to all employees drawing wages as per def. of wages in the Act up to Rs.18000/pm)

 

>> RPFC in o/o PF Commissioner (Nearest office has to help even if the PF a/c is ion some other office)

>> Inspector in Local/jurisdictional ESIC office………….( Wage ceiling for ESIC was Rs.15000/pm as per def. of wages in the Act and it is learnt that it was enhanced to Rs.25000/pm)

 

>> Civil court

 

There are threads to suggest that employees have been contemplating to approach police u/s 406, 420 and employer as creditors treating unpaid wages as debt on employer e.g;

 

https://www.lawyersclubindia.com/forum/details.asp?mod_id=72011&offset=1#.UNRXofLZ1JI

 

 

1 Like

Kailash kumar (NA)     11 November 2013

Thanks for your help, I'll follow the same.

I can't join another company if they update my profile on "Nascom" in negative.

 

Thanks.

Kumar Doab (FIN)     11 November 2013

 

@ Kailash,

 

If the clauses in appointment letter are not clear or not understandable without any hesitation show it to your elders in the family, lawyer.

 

Your profile at ‘Nascom’ will be created if you register at NSR/Nascom.

 

Did the company state in job advertisement, offer letter, appointment letter that it is mandatory to register with private establishment NSR/Nascom?

 

It is not mandatory for the employee to register with any private establishment.

 

The so called negative entry if any can be posted only if there is something wrong at your end.

 

Even if you rule out standing orders, Shops and Commercial establishments Act, the notice pay has to be max. as per the notice period/notice pay in lieu of notice period as stated in appointment letter issued to you by the employer that has become bilateral agreement between employee and employer.

 

The company if resorts to falsification of record it shall offence and can boomerang on the company. You can approach all authorities as already pointed out.

The IT employees unions had taken up the matter of so called negative entry in NSR and NSR replied that it does not blacklist any one.

 

In fact it can not.

 

The IT employees unions have done many good jobs.

 

 

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

 

 

 


Attached File : 986507114 can nasschom blacklist an employee.doc, 986507114 challenges for organising bpo workers in india.doc downloaded: 114 times

Kumar Doab (FIN)     11 November 2013

Attached

Gaurav (Research Manager)     14 November 2013

Thanks for your reply sir,

I want to clarify few things here:

1. I have already joined another company in August.

2. Before joining the new company I got all the documents - salary slips, offer letter, experience certificate etc. So the previous company can not deny that I was an employee of that company.

3. Also in few emails they have clearly mentioned they they have to give me July and August's salary and 5 month's reimbursements. However, right now they do not have money. I have all these emails and documents with me at emails, pen drive, computer etc.

4. However, since the promoters of this company are in the USA and now for past 2 months they are not giving me any reply it is a matter to worry. Also, I am in urgent need of money and can not wait anymore thus seeking for a solution.

5. As you mentioned, yes my salary was more than Rs. 18,000 p.m. and thus a labour inspector can not help me.

Please guide me what should I do in order to get the my dues. If you are suggesting that I should take help of a lawyer, please share his details so that I can discuss further details with him.

P.S. I am currently located in Gurgaon and the company was registered in New Delhi (India Entity).

Thanks and Best Regards,

Gaurav

 

 

Kumar Doab (FIN)     14 November 2013

----1,2,3,4: You seem to have done well and seem to have enough record.

 

----5. “5. As you mentioned, yes my salary was more than Rs. 18,000 p.m. and thus a labour inspector can not help me.”

 

 

It was mentioned that “You may not be able to approach Inspector under payment of Wages Act if your wages as defined in the Act are above Rs.18000/pm.”

 

 

Before you conclude that you can not approach Inspector under payment of Wages Act relate your wages as given in salary slip, appointment letter with def. of wages in the payment of Wages Act.

 

You may still be able to approach Labor Inspector, ALC in o/o Labopr Commissioner, Inspector under Shops and Commercial Establishments Act if you are covered as ‘Workman’ as in ID Act and as ‘Employee’ as in Shops and Commercial Establishments’ Act of the state.

 

If you are suggesting that I should take help of a lawyer, please share his details so that I can discuss further details with him.”

 

You have to find your lawyer on your own.

 

If you feel and are confident that you can represent yourself before a lawful authority and court on your own you can do so as Party in Person.

 

 

----P.S. I am currently located in Gurgaon and the company was registered in New Delhi.

 

The Delhi Shops and Commercial Establishments’ Act is so employee friendly.

 

2.  DEFINITIONS:

 

19.  TIME AND CONDITIONS OF PAYMENT OF WAGES.

21.  CLAIMS RELATING TO WAGES.

34.  Employer  to  furnish  letters  of  appointment  to  employees.

 

37.  POWERS AND DUTIES OF INSPECTOR.: (b) Duties of the Inspector: (i)  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;

 

41.  WILFULLY MAKING FALSE ENTRIES.

 

 

----- In the absence of coverage under these enactments you may have to approach a civil court for recovery of your dues.

 

At Delhi you can access lawyers par excellence.

The lawyer that has seen all of your docs and has analyzed your inputs can advice you the best. Your lawyer may opine that limitation period of 3Y may apply in your case.

 

 

 

prof s c pratihar (medical practitioner &legal studies)     15 November 2013

I have gone through the ld discussion in reply .i only mention some general points1) yr appointment letter is yr agreement towards master servant relation.hope you agreed in writing before joining.terms of agreement shall prevail.if employee has made any breach of terms of agreement causing any damage then you are entitled for damages.on the other hand you can sue u/s 34 of specific relief act deceleration and consequential relief.take help of a lawyer send notice first that only can settle even before going to court.prof sc pratihar.


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