Saswatabanerjee
Partner - Risk Management
Tushar.swar
Manager - Human Resource
Pon1965
Construction
+2 Others

Dear Sir.

I had been in a company for 14 years, though I had never been given an appointment letter. On 28 March 2014 I submitted my resignation letter stating that I will be resigning from the company w.e.f April 1, 2014, giving 5 days notice. We were in a situation that the company fixed a target to achived but not providing adequate work so that the target could be achieved. So at the end of the month company was deducting salary although they were providing the work. We had PF but the company was failing to submit the PF too. We had leave encashment benefit, and I had 24 days of leave to be encashed, that means i have taken only 3 leaves out of 27 leaves and i was supposed to get the enchashment of 24 leaves. But when i got the salary for the month of March 2014, i got only the salary and no leave encashment were given. When i asked the company manager, he told me that since i have served only 5 days notice, he had to adjusted the remaining 24 days leave and i am entitled do get nothing in the form of cash benefit and he could have even not paid the salary of the month of March. It is to remembered that i have not been given any appointment letter for my job during that 14 years. What he has done is justified or did i have any legal right to get the money of that 24 days. Any suggestion or advice will be cordially welcomed.

Thank you
6th April 2014 From India, Kolkata
Dear,

Seems you they dont have issued you the appointment letter, it means, you not bound with any terms & conditions of the company, so, on what ground they have recover the 24 days salary from your leave encashment..? you should asked back the anwer on the same..

As well as you have worked for 14yrs so, you are become entitile for terminal benefits too such like Gratuity.

As you are working with them last 14 yrs then you must have some proof of your employment with them,..? such like as salary slips, increment letter, Id cards, employment card etc. on this ground you may file complaint to regional Labour commissioner against this unjustice, its abolution of employees, even your PF matter also, will get it resolve & you will get all beneftis which are applicable to you..

But, not issuing the appointment letter is double edug weapon for employer too... as there is nothing any sepcified the nature of your employment as casusal, permenent, contract etc. it may easy to proove that, there is nothing any employee & employer relationship between of you.

So, take advice from advocate for smartly handling this.

Regards,

Tushar Swar
7th April 2014 From India, Mumbai
It is surprising that after working for 14 years, you left without proper notice.

Irrespective of whether you have an appointment letter, you are bound by the terms of employment (you cant deny it after 14 years) and therefore you have to given 30 days notice as the company rules says. Its a standard and fair term so you have no grounds to complain on that.

The company is completely right in deducting the notice pay from your dues.

For PF, you can go and check with the PF Online Website how much is deposited each month. If the amount is not showing, you need to file a complain with the PF Department. I think there will be a PRO who will help, else you can talk to the PF commissioner (I find they are very much willing to talk to any one who has a complain on non payment)

Where you do not have any appointment letter, where does the 24 days leave encashment come from ? Is there an HR Manual where it is stated ? Or leave rules ?

If not, then you have to go by factory act or shop & establishment act. The act provides for encashment of pending leave (of the maximum number specified in the act) on termination of employment. So you have a right to ask for it.

As Tushar said, you are entitled to Gratuity.

The question then comes is how can you claim ? What do you have ? If you at least have a PF account, then employment is proved.

The second question is - is it worth fighting for ? You will take a long time to get any results from the courts (or from the labour office, who finally has to go to court). Either you be prepared for a long drawn fight which will also have an effect on your new employment. Or you just use the legal notice / notice from Labour Officer as a scare tactic to make the company pay you.

We do not have much of the info, so non of us can help you further than this.


10th April 2014 From India, Mumbai
Dear Mr. Banerjee,

I am sorry to say that, i am not agree with your first 2 paragraph...

When you say that, employee follow the rules & regulation, then when company turn is come, why company treated as difensive..?

As you said that, employee can't be go without serving notice period after 14yrs & he is bound to all terms & conditions (which he has not signed any document in legal way) .. then, i would like to asked one question that, Whether company doesnt have responsiblity / ethics & professionalisam to give appoitment letter to such employee who is working with them since 14yrs..? infact, company should have more concern about the accidental event happen in future, they should have took Preventive measure to avoid such incident as company to any direct or indirect losess.

Anyway, Here, i would like to say, we should see what law says rather than logical & emotional opionion, if company has not given any appointment letter since 14yrs, it means assume that, company was no more interested & seriouse to kept bound to respctive employee in any terms & conditions. in the same way, in terms of legality, employee has nothing any signed documents related to terms & conditions, so, any of document,which without the signture (consent) of respective partie shall be consider be consider null & void irrespective of oral or physincal documents, it not consider as promisery note nor even Agreement under sec. 10. The India Contract act. 1872

10. What agreements are contractsAll agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.

Nothing herein contained shall affect any law in force in 1India, and not hereby expressly repealed, by which any contract is required to be made in writing 2or in the presence of witnesses, or any law relating to the registration of documents.

For Grauity, i belive that, if he has worked 14yrs in orgnisation, then defenetly, he must have evident of said employment, some documents like, salary slips, as you said PF slip or documents, ID cards, any authorised letter given for any other reason, which proove the tenure, & attendance registe, ESIC card etc.

on your last Sentence I would say that, we should keep our mind open to take views of other members too.

Regards,

Tushar Swar
10th April 2014 From India, Mumbai
Hi, what type of Company? How many employees are there? Is it a proprietorship Co. or Ltd? How the salary is being made, by cash or bank transfer? What was your designation? Pon
10th April 2014 From India, Lucknow
Ok. First things first. As you stayed with the company for 14 years and I'm assuming you have proof like ID card, salary slip, email records etc; it doesn't matter (in a court of law) if you were given an appointment letter. As your (and the company's) actions deem you to be accepted in the company.
Now as far as your unused leave is concerned, I am not sure whether your company's stand is correct or now. However, it is surprising to me also that you left your 14 year old job with just 5 day notice.
Moreover, you would obviously be eligible for gratuity and PF. Claim the same.
10th April 2014 From India, Mumbai
First, please understand indian contract act does not apply to employment. Employee employer relationship is not covered under the indian contract act. General rules of agreements are a part of indian jurisprudence and to that extent the principals are applied to employment disputes where the conditions are not already covered under specific legislation.

In any case, contract act clearly states that it is not necessary for an agreement to be in writing and oral agreements are just as enforceable as written ones. For the rest of the things, you need to see indian evidence act as to what is allowed as evidence if the agreement is not in writing.

Further, please check the concept called doctrine of estoppel. Where your action indicates that you have accepted the agreement, you are prevented by law from denying that you agreed to the terms. 14 years definitely is enough a period to be covered under promissory estoppel.

About the company's duty to be "ethical" is not in question. I am not a representative of the company and I am not in possession of facts to decide whether the company has acted ethical. However, it is definitely unethical to leave with 5 days notice. In the origins post, we are informed that the company has done certain things and we are asked what remedy he has. Pretending that he is entitled to full month wages and exempt from notice period is not correct. So I have given in as much details as possible of what he is and what he is not entitled to.

More than that we can't say because the original poster has not provided all the details as pon has also pointed out. We should wait for the original poster to provide further details to get a more accurate answer.


10th April 2014 From India, Mumbai
Thank you sir for taking your time answering my complaints. To give you more details, i got PF, company id card, salary slip and my salary was paid through bank. Is there a universal law for a notice period of 30 days? .
Once again thank you all for taking out your precious time to answer my questions.
with best regards
Suvro
15th April 2014 From India, Kolkata
There is no universal law as such
However, general business practice is to give a 30 day notice, which by virtue of being customary, carries the force of law.
further, standing orders (which is standard terms of employment that applies to any factory or office which does not have its own) provides for 30 days notice period.
Therefore. It is unlikely that either a court or a labour officer will help you on that count.
For other things, I have made my assumptions. You have enough proof of employment to take action on other requirements

16th April 2014 From India, Mumbai
Dear Mr. Banarjee,
Can you just help me with any notification or any documents or any section, where it is mentioned that, The Indian Contract act. 1872 does not apply to employment laws or labour laws..
It would be added in our knowledge.
16th April 2014 From India, Mumbai
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