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Unpaid Salary (Manager)     14 April 2014

Unpaid dubai salary - what is the legal recourse in india

Hi,

I was hired in India and was employed in India/Dubai for close to four months.I was hired as a Dubai employee, offer letter was given by the Dubai arm of the Indian IT company, with all the benefits including the salary in Dirahms. I was based in India for the initial period of 1.5 months till the time my visa was processed.

Issue:

Unfortunately, the company never paid any salary for over three+ months. I was only paid (my Dubai Salary equiv. in India) for the initial 17 days of work in India. After this while I was in India for a month and 3 months when I was in Dubai, they did not pay me my monthly salary. Whenever I approached them, I was only given empty assurances and there was no action. Apart from the monthly salary, the company had also assured me for an advance amount for my settlement in Dubai on my arrival which was never paid to me.  I ended up funding my Dubai living expenses out of my savings from back home.  All in all it was a stressful experience.

Completely frustrated, I decided to officially put down my papers and move back to India. I gave the required notice to the company and completed all the formalities amicably. On their part they immediately cancelled my visa and relieved me from my services in a few days time. They also agreed to waive off my notice period even though I had offered to completely serve it. I did not want to create any problems for myself or my company so I went with the assurances given to me during my relieving. They had confirmed to settle my dues in the next couple of weeks as soon as the money is available to the company. This never happened. Even when funds were available to the company for distribution, my dues were not cleared. I have time and again, politely reached out to the company requesting them to settle my dues but there has been no action so far.

I have all the email communications, the contract letter, the service letter and also the salary slips with me which can prove that I was not paid my salary.

Queries:

1. What legal recourse do I have in India to recover my outstanding salary?

2. This incident happened mid 2012, I followed up for 6-7 months but did not get any where. I was also financially challenged to take action then? It is over 1.5 yrs now, will this be an issue?

3. Any other suggestions or course of action is welcome.

Thanks.



Learning

 6 Replies

Kumar Doab (FIN)     14 April 2014

The labor laws are almost same across the Globe as all of these have been enacted to defend the rights of workforce.

The discussion on your query is from Indian perspective. You can approach an attorney in Dubai too.

You have referred your employer as Dubai arm of Indian IT Company and that you were recruited in India, worked in India and then deputed/shifted to Dubai.

Who processed and paid salary?

Probably Indian (Parent) Company. You may confirm it. If it is so then you may succeed to affix the liability of debt on Indian (Parent) Company.

Although you seem to have believed that you were appointed and not paid by Dubai based company.  

The limitation period in case you are not covered as ‘Workman’ might be 3 years.

If your lawyer opines that you are covered as ‘Workman’ then he may agree that there is no Limitation. Your lawyer may opine that you were recruited by Indian (Parent) Company To be deputed to Dubai company, paid initially by Indian company deputed at Dubai and left to lurch.

It is proved as a fact then it would be a serious and punishable offence.

 

 

You have posted that;

---“I had offered to completely serve it.

If you had stated so in writing then company shall be liable to tender notice pay for shortfall in notice period. Immediate cancellation of VISA and acceptance of notice of resignation shows that they did not want you to serve the notice period.

Moreover in case salary was not being paid then notice period etc had lost its sanctity due to breach by employer.

The company has breached its own contract. Wages have to be paid on time. Employee can lodge a complaint the moment wages are delayed even for a day.

Generating salary slips but not paying the salary may amount to falsification of record and offence.

 

---“They had confirmed to settle my dues in the next couple of weeks as soon as the money is available to the company.

Is it confirmed in writing or did you record it? Did the company issue FNF statement?

 

If yes it can amount to admission of debt.

Unpaid wages is debt on employer.

 

If employer has defaulted on payment of wages it must have defaulted on statutory social security benefits too e.g; EPF,EPS,EDLI, ESIC,TDS…..etc

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. 
Refer to: Payment of Wages Act; Sec13A and 2: 3*[(i), (ia), 3*[(vi), 3, 4 ,5, 13a, 14, 15, 16, 17A, 20…………..

The employee should approach within 1 year or has to get the delay condoned.
Employer has to issue wage slip to all employees.

---Inspector under Shops and Commercial Establishments Act


--- O/o Labor Commissioner

----RPFC thru nearest PF office ;The 

----ESTC Inspector in jurisdictional ESTC office


--- ITO; TDS where you file your ITR


CIT-TDS (jurisdictional) where company files ITR
There are provisions for penalty/punishment for non issuance of Form16 by the deducator…………..

 

----Lawyer/Law firm: Your lawyer may opine to issue statutory notice for ‘Winding Up’ the company……………………..and this may send zitters in Indian company.

---Civil Court

 

---Employees Unions, Trade Unions

They are sensitive to such issues and know precise ways to handle such matters too.

Influential Community leaders may adopt ways that suit them and drill sense into the heads.

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

 



1 Like

Unpaid Salary (Manager)     14 April 2014

Hi Kumar,

Firstly, thank you very much for your detailed response. I have tried to give more information based on the questions that you have raised.

You have referred your employer as Dubai arm of Indian IT Company and that you were recruited in India, worked in India and then deputed/shifted to Dubai.

<Response – One clarification from my side, the IT company is headquatered in Dubai and has a development center here in India. Technically, I don’t think that I was deputed to Dubai because I was hired specifically for a role in Dubai and was given an offer letter directly from there. I was kept in India for the visa processing. >

Who processed and paid salary?

<Response – Salary was processed by their Dubai office in Diramhs and paid to me in INR after conversion. This was for the initial 17 days of my time in India>

Probably Indian (Parent) Company. You may confirm it. If it is so then you may succeed to affix the liability of debt on Indian (Parent) Company.

<Response – Parent Company is registered in Dubai and they have a development center in Mumbai. For the first month I was working from this center. Now that we know it is a Dubai registered company, do I have any options to take them to court?>

If your lawyer opines that you are covered as ‘Workman’ then he may agree that there is no Limitation. Your lawyer may opine that you were recruited by Indian (Parent) Company To be deputed to Dubai company, paid initially by Indian company deputed at Dubai and left to lurch.

<Response – I am very sure that I was recruited by the Parent Company in Dubai on Dubai payroll. Also, I was not deputed from Indian Subsidiary, I say this because I was never on their payroll.>

--“I had offered to completely serve it.”

If you had stated so in writing then company shall be liable to tender notice pay for shortfall in notice period. Immediate cancellation of VISA and acceptance of notice of resignation shows that they did not want you to serve the notice period.

<Response – I had send my resignation on an email clearly stating my willingness to serve the required notice period. Management accepted the resignation on email but in their response they were completely silent about the notice period waiver. They confirmed to me verbally and I went with that. I never thought that it would become so messy.>

---“They had confirmed to settle my dues in the next couple of weeks as soon as the money is available to the company.’

Is it confirmed in writing or did you record it? Did the company issue FNF statement?

 

<Response- Yes I have the emails from my manager and the senior management of the company confirming and assuring me that the payment will be made soon. On the FNF the company is asking me to pay them for the visa cost, for cost of my training and onboarding me. This is after 4 months of my leaving the company and for the first time they demanded money in the entire communication cycle >

Kumar Doab (FIN)     14 April 2014

 

You have posted that:

>>> “ Salary was processed by their Dubai office in Diramhs and paid to me in INR after conversion. This was for the initial 17 days of my time in India” “I was only paid (my Dubai Salary equiv. in India)” “when I was in Dubai, they did not pay me my monthly salary. Whenever I approached them, I was only given empty assurances and there was no action.”

This gives an impression that 17 days salary was paid only to allure you to leave India and be at their mercy in Dubai. And in reality too, you were never paid earned wages.

The employer also failed to provide advance! Did it promise to pay advance in writing?

As per Dubai laws it might be an offence!

 

>>> “I had send my resignation on an email clearly stating my willingness to serve the required notice period. Management accepted the resignation on email but in their response they were completely silent about the notice period waiver.

You had tendered full notice period. Only you can grant a waiver. Management can’t grant any waiver. It can offer to compensate with notice pay for shortfall in notice period mutually agreed upon and as stated in appointment letter.

Indian law is clear on that e.g:

 

Supreme Court of India

Nand Keshwar Prasad vs Indian Farmers Fertilizers 

https://www.indiankanoon.org/doc/1452145/?type=print

 

11. After giving our careful consideration to the facts and circumstances of the case, it appears to us that the law is well settled by this Court in a number of decisions that unless controlled by condition of service or the statutory provisions, the retirement mentioned in the letter of resignation must take effect from the date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date when the employee concerned did not intend to retire from such earlier date. It has also been held by this Court that it is open to the employee concerned to withdraw letter of resignation before the same becomes effective.

 

IN another publication from Gulf it is posted that:

The notice period stipulated under Labour Law shall not be shortened, but can be extended by mutual agreement.  As per the labour law, the condition of notice is always required and legally binding on both the employer and employee.

Thus, if any party fails to commit to such notice condition, if he does not notify the other with ending the contract or if he does not complete the notice period, then the violator party shall compensate the other as per the Article No 49 of the Labour Law.

Accordingly if the contract is terminated without observing the notice period, the party terminating the contract shall be obligated to compensate the other party for an amount equivalent to the wage for the notice period or the remaining part thereof.’

https://www.gulf-times.com/opinion/189/details/343109/verbal-termination-is-illegal

 

By Nizar Kochery /Doha

 

>>> “Yes I have the emails from my manager and the senior management of the company confirming and assuring me that the payment will be made soon.”

This amounts to admission of debt.

 

“ On the FNF the company is asking me to pay them for the visa cost, for cost of my training and onboarding me. This is after 4 months of my leaving the company and for the first time they demanded money in the entire communication cycle 

This speaks about malafide intentions!

The employee had not alternative but to give up since his earned wages were not being paid although he has been clamoring for it in an alien land where he was allured but was not paid wages; a fruit of his labor.

The employer is unworthy of being employed with.

Had the employer genuine intentions it would have paid some amounts and declined to accept resignation too! The employer has no reason to claim the VISA fee, training whatsoever etc etc………………and rather is liable to pay damages!

The demand seems to be a later thought to square off your dues and thus usurp the amounts that is due to be paid.

>>> This is heartfelt opinion.

You may check with an attorney practicing labor law, and criminal law in Dubai too.

You may check with a lawyer/law firm practicing labor law, and criminal law in India too, and scope and merits of including Indian arm too..

Apparently you seem to have merits and good case.

You may show the job advt., job application, interview call letter, selection letter, offer letter, joining report in India, appointment letter, service rules and regulations, HR policy, al communications, all docs on record etc to your lawyer and spend quality time with your lawyer to understand the merits and proceed under expert advice of your lawyer. The attorneys in Dubai might be having office in India or vice versa and you can make an attempt to contact these.

 

 

 


Attached File : 502098890 gulf times.doc, 502098890 nand keshwar prasad vs indian farmers fertilizers.docx downloaded: 151 times
1 Like

Unpaid Salary (Manager)     14 April 2014

Once again Kumar, Thank you very much for your detailed response.

About discussing with a Dubai lawyer, I had done that 12 months back when I filed an online complaint with the respective authority in Dubai. They accepted my complaint and also gave a date to start the hearing. Unfortunate part of this was, they wanted me to be present there for the hearing for the first hearing and then issue a POA in my lawyers favor such that he can continue arguing. 

 

I could not go ahead because of my financial limitations then. I am a salaried person and the only earning member of family of 5. With this company, I was practically working without any income. To make matters worst I was spending in Dirahms in Dubai. My other expenses (EMI+household) practically eat everything out of my savings and had to start from scratch when I came back to India. So I decided not to pursue the case any further then.

 

Now as well, hiring a lawyer in Dubai will be a stretch for me and that is the reason I am wanting to know what are my options in India/Mumbai.

 

Can I file a Civil or Criminal case with the facts that I have stated? If yes then what is the bill I should be prepared to pay?

 

Also, on the point of serving the notice and management not giving the waiver, I have verified it with several forums in Dubai and with my Lawyer as well - If the company has not paid you your wages/salary it amounts to breach of contract and I can claim respite with the Labour Commission with the serving of notice period. My Bad Luck was that I believed those crooks in my company and decided to head back in a hurry to India without covering my interests when I was there in Dubai because I did not have the money to support my expenses there. I only wanted to come back and start fresh.

Kumar Doab (FIN)     15 April 2014

 

IN your last post you have stated that:

Also, on the point of serving the notice and management not giving the waiver,

 

It is reiterated that:

You had tendered full notice period. Only you can grant a waiver. Management can’t grant any waiver since you have initiated separation ( of course since your earned wages were not being paid and you were not able to maintain yourself in an alien land and mange even expenses to attend office). Management can not prepone or postpone date of relieving (expiry of notice period/last day-date in office) chosen by employee. It can offer to compensate with notice pay for shortfall in notice period mutually agreed upon and as stated in appointment letter. Even in such case it is discretion of employee to accept or reject such offer and decide to sue the employer.”

 

You have been probably continuously writing to them and clamoring for payment of your dues in writing.

The employer has finally responded in writing.

If the officials/employer is in office at Mumbai you can meet them and probably you ay succeed to agitate at Mumbai.

Your lawyer can update you in detail and on merits.  

 

Your lawyer may opine that the Indian Arm can be taken in loop thru consulate or other route, and winding up petition is possible or not. If yes this may move the things at a lightening speed for you.

Your lawyer can explain why you could not follow up online complaint at Dubai.

Regret can’t explain the expenses. You have to settle the T&C with lawyer on your own.

You may consult a lawyer/law firm practicing labor law, and criminal law too.

If you file both civil (labor, service matter) and criminal complaint then you would need to strike a balance and co ordinations between both lawyers as both are altogether different fields of law.

IN each city there are lawyers that specialize in labor/service matter and criminal complaints. Usually such matters are referred to them. They are very few in numbers and are well known.

You have already been interacting and have acquired clarity on your matter and now you can handle your case.

A properly informed employee can defend his rights in much better manner.

An ill informed employee is like a sitting duck and is prone to exploitation.

 

Apply your knowledge to educate and make other fellow citizens aware.

1 Like

Sudhir Kumar, Advocate (Advocate)     16 April 2014

I believe Mr Kumar Doab has given enough energy.


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