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Bharath (Advocate)     29 May 2013

Neither resigned nor terminated. salary unpaid.

Hi. A client about 58 years old worked in a Private Limited company between March 2009 and January 2013. In the said period, he worked his way up from an Area Sales manager for a particular district to the Marketing Manager of the company. But suddenly, he was demoted from his position a s a Marketing Manager to Regional Sales Manager. His salary did not change though. He had shown a steady rise in the sales during his tenure. The raise in over all sales was nearly 40% in the period he held office. Two months after his demotion, his salary was stopped and his expenses were unpaid. He was promised incentives on sales which also remain due. Now, he is neither terminated by the company nor has he resigned formally. His pay has been due for well over 5 months. His expenses are due for over 6 months. And his incentives are due for over 11 months. Despite repeated reminders, the company has shown no inclination to settle.  These are the facts. What kind of actioncan he take against the company to get his dues.



Learning

 11 Replies

adv. rajeev ( rajoo ) (practicing advocate)     29 May 2013

Let him issue legal notice claiming the dues.  If the co., responded positively for the reply then no problem, otherwise he will have to approach the labour court.

1 Like

Hemang (Advocate)     29 May 2013

The employee is neither suspended, removed or dismissed, nor his services are otherwise dispensed with. Hence, the employee is eligible for regular salary. You may file appropriate legal proceedings for recovery on such ground. 

1 Like

Kumar Doab (FIN)     29 May 2013

 

Is the employee attending office, meetings, receiving and sending emails letters etc……….

The employee should download full record of attendance, Tgt. Vs Performance, all Salary Slips (if uploaded at employee web portal), and all relevant record which can be useful, email communications etc………………

Employee may check if company has stopped or company is paying group insurance premium, PF , Gratuity, ESIC, TDS etc…………

 

 

Employee may also try to find out from HR the documents inserted in his personnel file or request (in writing under acknowledgment) the good offices to allow to let him examine his personnel file……………. 

 

Unpaid wages can be claimed Under Shops and Establishments Act of the state Applicable to all fitting in definition of employee as per the Act) , Payment of Wages Act ( applicable to all employees drawing wages up to Rs.18000/pm as per def. of wages in the Act), approach o/o Labor commissioner if the employee is covered a s a workman or civil court……………..

 

There are threads to suggest that employees have filed complaint under Sec 406,420…………

 

And employee may claim unpaid wages a debt on employer……..e.g;

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

1 Like

Bharath (Advocate)     29 May 2013

The company has stopped his PF as of december 2012. He contnued to work for the organisation till feb 1st week. Following the event of his salary being stopped for the second consecutive month, he stopped work and demanded explanation. He never received a suitable explanation, he was not terminated, nor was he asked to resign.

Kumar Doab (FIN)     29 May 2013

 

He should not have without proper notice to the company.

He is absenting since last many months although he may claim that he was not being paid wages…………

Did he ever try to meet the promoters/senior managers/HR Head and know his status on employment even if verbally………..

 

The company might have inserted docs in his personnel file with remarks e.g:

Absconded, Abondoned, terminated…………..etc

 

He may demand that he may be allowed to examine his personnel file and an appointment be granted in writing by redg. post, and may add that a postage prepaid ( as purchased from PO) self addressed envelope is attached for sending redg. post to him.

Let the personnel file become case document and case file on record.

 

 

The representations may be drafted and structured, after examining all of his documents, explanation given by company (suitable or whatever) inputs by employee, merits, by the lawyer. The opinion from a competent and experienced labor consultant/service lawyer on documents and records may be sought.

1 Like

Bharath (Advocate)     30 May 2013

Although they did not meet in person, the client has been calling and conversing with the Managing Director of the Company who promised to settle all his dues in 2 days a week back. But he failed to deliver and simply mailed the TDS return forms to the client.

sachin agarwal (lawyer)     31 May 2013

hello Sir, as per my advice, when you have appointed as a manager in sales the company has given you the appointment letter and the terms and conditions were disclosed in that letter and you has signed that letter and accepted the same by you.  First you look theappointment letter and collect all the material data and documents in the respect of your employment in the company.  Because of you are on the managerial post it means your post in supervisory nature.  So you can not go before the Labour Commissioner or in the Labour Court but have right to go before the civil court and filed a suit for the dues and whatsoever you want from the company in respect of the employment which was given by you to the company for salary and allowances.  If the company is registered under the companies act and maintaining the records before the registrar of companies.  And as per policy in India the company will give the notice as per provision of law and terminate you before given you the chance to hear your voice and record your appearence.  Now at this stage you are in the hanging position because of neither you are in the company not you are out of the company.  In this position you can ask by way of notice to the company in respect of the employment of you and also ask for settlement of accounts.  Thereafter if the management of the company not settle the matter out of the court then you may go before the appropriate court the you can file the suit. God bless you if you bless yourself.  For any advice and query for me on 92 10625938 Sachin Agarwal advocate

1 Like

sachin agarwal (lawyer)     31 May 2013

Dear Sir in respect of the query. I advised you that at this stage when the company is not taking your employment and also not giving your dues, it means very clear that you are in a hanging position.  In respect of the Provident fund dues it is very simple that you check your status of the Provident fund before the EPFO office through Internet or manually to go to the office where your records is maintained by the office of the Provident fund.  If they reach some latches and negligence from the part of the establishment will you are working than you collect all the records regarding employment and provident fund dues and make a complaint before the concerned regional provident fund commission. Again in respect of her salary dues before the company you can make a complaint before the Labour Commissioner or in the Labour Court you can file the complainant not only for the dues but also negligence in the service from the part of the company.  But before to all the things you should send a notice to the company for clear is dues and reinstatement for the job in its original.  God bless you if You bless yourself.For any advice and query you can ask to me on 92 1062 5938 Sachin Agarwal advocate

1 Like

Bharath (Advocate)     31 May 2013

Thanks to all my fellow learned and vastly experienced counsels. The client has been finally paid his dues today following a phone call conversation between myself and the managing director. Your invaluable assistance and insight in the matter helped my client. My regards to all. Cheers.

Kumar Doab (FIN)     01 June 2013

It is vaguely remembered that one employee had initiated similar thread and it was suggested by experts/members that if he in being paid the wages he should notify the employer before stopping to attend the office.

Let us take home learning’s from this thread.

In case of issues employee should not hesitate to approach a lawyer, and must consult a lawyer as ap.

The employee should not shy to apply resources and exceptional levels of reasoning, negotiation, persistence, persuasion skills, to drill sense into the heads, and resolve the matter in his favor without compromising on his rights.

 

The employers have been and shall continue to exploit the ill informed, weak willed employees.

 

The properly informed, strong willed, properly counseled employees shall continue to succeed.

 

 Now the employee should ask to reinstate with full back wages, without any break in service ( in writing by an office order) and demand that his PF, Gratuity, medical insurance, group insurance, all be regularized in writing, all pending salary slips, form 16 be supplied………………in short employee be regularized without any adverse bearing on employee.

 

Mr. Bharath you have made it happen.

Congratulations.

 

Lawyers of the caliber of Mr Rajeev , Mr. Hemang, Mr Rajeev, Mr.Agarwal is the need of the hour for an employee to get relief.

1 Like

Adv k . mahesh (advocate)     03 June 2013

have you calculated all the payments made by the company is accordingly paid and if any discribuances then consult the company immediately because once you leave the amount there will be no chance for you to claim 

in your case what happened this last 5 months you have not worked nor the company has not taken your services thus they paid this 5months salary also or not if not then let you demand to pay you the salary as you have not terminated from service but company has not given you a chance to work from your end you are obedient to work 

to get the 5 months salary try to take an y local lawyer help to draft a letter to submit if youwant only if not just leave the matter and end the thread 

1 Like

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