Exclusive HOLI Discounts!
Get Courses and Combos at Upto 50% OFF!
Upgrad
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

akshay patel (lawyer)     18 February 2015

Resignation without waiving notice period of service agreem

Dear friends,

one employee resign from his post without waiving notice period, as the company is not paying him the salary and overtime for work duing weekely(holidays and sundays) off, now as due to above reason employee resigns without waiving 1 month notice period,-------- in light of above situation my query in subject matter is as follows:-

  1.  wheather calling an employee during weekely off without paying O.T and salary amounts to breach of Contract of employment-Pls provide any judgement if any.
  2. in above case employee is liable to pay Notice period salary amount for not waiving the Notice period?
  3. wheather above situation giving right to employee to quit from the job without notice period.
  4. can employee seek injuction from labour court restraining them to deduct any amount of notice waiver period.

 

please provide your valuable suggessions to guide employees who are forced to work in private company, against their right of obtaining leave.



Learning

 4 Replies

Kumar Doab (FIN)     18 February 2015

Non Payment of earned wages (including for OT) renders an employer unworthy of being employed with.

OT and payment of wages has to be recorded by employer in various registers prescribed under enactments applicable to establishment e.g. (name of the state) Shops and Commercial Establishments Rules..........and salary slip has to be supplied at least a day before the disbursement of payment of wages on the fixed pay day.............and it has to be signed b

You may refer to Payment of Wages Act;Sec13A, Min. Wages Central Rules:26(3,4), (name of the state) Shops and Commercial Establishments Act.............

In case of Non payment of wages Notice period has lost its sanctity.......................

 

Unpaid wages are debt on employer................. and that complaint u/s 406,420 can be filed  and ‘Winding Up’ petition can be filed ……………….recovery suit can be filed……..and that you can file complaint with Labor Commissioner (central /state as in your case)…………

 

You can file complaint with Inspectors appointed under the enactments mentioned above and it is the duty of the Inspector to ensure that FnF dues and amounts are paid in time.......

The compensatory off  has also be given in case where it is applicable......

If wages were not paid then employer has defaulted on PF,ESIC,TDS etc too....

Complaint can be filed with for:

PF: RPFC/Addl.CPFC/CPFC/Vigilance Cell

Bonus: O/o Labor Commissioner for employees at all levels

 

TDS: ITO-TDS where employee files ITR,CIT-TDS where employer files ITR

akshay patel (lawyer)     18 February 2015

thanks for sharing your views but wheather immidiately resigning from the job

due to compulsive work on weekdays , amounts to breach of terms of Appointment or not? and in that situation can employer sues for breach of condition of notice period?

Kumar Doab (FIN)     18 February 2015

 

 

 

The notice period,OT etc. are part of service conditions and are governed by enactments applicable to the establishment e.g. (name of the state) Shops and Establishments Act that was enacted to govern the service conditions of employees working in establishments covered by this Act , standing orders (Certified/Model)………………..

>>> OT:

e.g. as in

Delhi Shops and Establishments Act, 1954

 

8. Employment of adults, hours of work.- No adult shall be employed or allowed to work about the business of an establishment for more than nine hours on any day or 48 hours in any week and the occupier shall fix the daily periods of work accordingly:

Provided that during any period of stock taking or making of accounts or any other purpose as may be prescribed, any adult employee may be allowed or required to work for more than the hours fixed in this section, but not exceeding 54 hours in any week subject to the conditions that the aggregate hours so worked shall not exceed 150 hours in a year:

Provided further that advance intimation of at least three days in this respect has been given in the prescribed manner to the Chief Inspector and that any person employed on overtime shall be entitled to remuneration for such overtime work at twice the rate of his normal remuneration calculated by the hour.

Explanation.—For the purpose of calculating the normal hourly wage the day shall be reckoned as consisting of eight hours.

 

The language suggests that the intimation to Chief Inspector has to be given……………….the employee may be allowed or required to work……………the OT shall not exceed 54hrs/week and 150hrs/year……

You may find the breach in the enactment applicable to the establishment.

 

>>> Notice Period:

e.g. as in

Delhi Shops and Establishments Act, 1954

 

30. Notice of Dismissal.- (1) No employer shall dispense with the services of an employee who has been in his continuous employment for not less than three months, without giving such person at least one month’s notice in writing or wages in lieu of such notice:

Provided that such notice shall not be necessary where the services of such employee are dispensed with for misconduct, after giving him an opportunity to explain the charge or charges alleged against him in writing.

(2) No employee who has put in three months’ continuous service shall terminate his employment unless he has given to his employer a notice of at least one month, in writing. In case he fails to give one month’s notice he will be released from his employment on payment of an amount equal to one month’s pay.

The notice period for service < 3 months =NIL…………..

If standing Orders are applicable and employee is under Probation Period notice period shall be NIL.

The notice period has been discussed in detail in following thread too:

 

https://www.lawyersclubindia.com/experts/Notice-period-523671.asp

 

>>> You may also go thru:

37. Powers and duties of the Inspector

 

 

akshay patel (lawyer)     20 February 2015

thank you very much for your valuable inputs.


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register