Saswatabanerjee
Partner - Risk Management
Octavious
Hr Manager
Greekrajnaren
Professional
Tajsateesh
Recruitment/talent Acquisition, Career Counselling
SURESH K SINGH
Hr Professional
+4 Others

#Anonymous

Please Help with Next Step:

History: A employee is terminated (on false grounds like misconduct - giving bribe against organization). However, he has put in his resignation but rather than accepting the same, organization terminates the employee for above reason.

Query to ask:

1. Organization has put a hold on last 4 months salary of this employees. Why 4 months: All salaries were on hold because company was not able to pay its employees because of lack of funds. Company is not paying employee his dues and F&F ? Does company is allowed to take such action like not giving dues and F&F n case of termination, as there is no such clause mentioned in offer letter. If Not, how to take dues from organization. Can self takes legal action.

2. Termination (Was on the spot, as employee is in probation): Offer letter clearly says if its a termination in probation period, then company is liable to 2 weeks notice or salary in lieu. Organization is not paying this to employee also.

3. How can a organization give a termination letter after getting a resignation from employee ? Is it correct to put this case in court as organization is not ready to clear self dues and also no experience letter is also provided.

Please help !!

Regards
26th October 2014 From India, Delhi
Dear,
Please clerify your actual things because your question is not proper rather than your question:
1. Holding of salary for 4 month: if company found any employee to indulge any anti activities, the company may hold the salary for next 4 or any number of months but company should pay atleast 60% of the salary to meet the household expenses.
2 termination: if company has not accepted the resignation then company can put you on termination.
3. Legal action: without know the clear things I cannot suggust.
Hemant kumar
Hemantarchna@gmail.com
26th October 2014 From India, New Delhi
If the post is of a true case, then it would also make sense to out in some basic things - is the concerned employee you ? If not you, then what relation the employee has with you and your interest in the matter.

Is the accusations true ? Or false or you think it is false or you want it to be false.

I still do not understand why an employee is still there when the company has not paid him 4 months salary. I can even understand permanent employees willing to stay on, but in probation ? He worked for free ?

Back to the original question - the company can terminate him, even if he has resigned. If he is terminated during probation, with no reason given as is allowed under the terms of employment, then he has to get his notice pay as stated in appointment letter / standing orders.

If the termination is on grounds of misconduct and one serious - involving moral treplitide, then no notice pay is required. But the domestic enquiry must be conducted and the employee given an opportunity if being heard, and allowed to defend himself.

About non payment of salary you can complain to the labour commissioner office and take his help. Going to court is of little meaning as time and cost is too high. It would then make more sense to forget it and move to another job. If the company does not have money to pay salary for 4 months, and the owners can't / wont get money from own sources, then at the end of everything, you still don't get the money.

The last point you made - experience letter. It's 4 months under probation. With termination under accusation of bribery. Such a letter has any value ? Instead say you worked for 4 months but they didn't have money to pay so you walked off and have no experience letter. And that you didn't think it was worth wasting any more time there hopping to get experience letter and working without pay for another 2 months
26th October 2014 From India, Mumbai
Dear Saswata, you need to read the employment Agreement thoroughly, all the terms and conditions shall be executed that contain such agreement regards. Abdul Malik
27th October 2014 From Afghanistan, Shar
Since we don't have the agreement, we on the forum have to assume it's standard. This always happens with us here ;)

Which is why I started my point saying - if the post is true ....... Cause we don't know whether the employee was innocent or guilty. So I have tried to consider standard conditions and given the options that I think are the best. It's all subject to the complete information being available.

However, I do not think the employment agreement as such would make much of a difference. First, there are already laws that govern such things (indistral employment standing orders act being the main) and existing HR process, employee hand book and manual (to the extent it does not violate the law).

I do not think most appointment letters or its attachments would give details of process to be followed in case of fraud, theft, negligence or whatever the employee was actually accused of.

We do not even know what the termination letter says. Does it say termination during probation under the terms of appointment letter ? Or does it say termination on account of fraud. If it's the latter, then the company has probably made a grave mistake in not conducting domestic enquiry.

I hope I understood your point and not barking in a wrong direction.


27th October 2014 From India, Mumbai
Dear Anonymous
Merely leveling an allegation against anyone without a valid proof, will not stand the test of law in the court.
So the company cannot hold on to any employees salary without any valid reason supported by appropriate evidences.
Termination issued after issuance of resignation by employee can be stated as after thought to act of employee submitting his resignation merely to escape any and all dues payable to employees by employer.
There are various Supreme Court judgements where in it clearly stated that the employer has to pay the salary of all its employees first then only any other debts, and if need arises the employer shall sell even his personal property to satisfy the obligations as an employer towards his employees.
To begin with you can file a FIR with the local police station against the employer for criminal breach of trust, for non payment of salary as per the terms and conditions of your employment contract.
Regards
Octavious
28th October 2014 From India, Mumbai
#Anonymous
Termination Letter Does Not Define Any Fraud or Misconduct. It only defines " Termination of Services" WITHOUT highlighting any reason.
Its all verbal (Serious Misconduct like giving/taking bribe etc)
1. Seems like after effect of submission of my resignation as company is not willing to pay dues
2. Questions: How to get my pending dues as organization is not giving with repeated polite requests ( 4 Months salary, reimbursments etc)
Am i m eligible for notice pay (Offer letter clearly says: 2 weeks notice period or salary if terminated in probation).
What are the chances of winning the case if I present this in court as its already 2 weeks pass by.
Please suggest !!
Thanks all for your suggestions.
Regards
28th October 2014 From India, Delhi
As we have repeatedly said on this forum - any court action in india takes a very long time and in the end probably found to be not worth it. In any case, what will you get from a company that does not have miney to pay its employees for 4 months (in fact I still can't understand why someone will work 4 months without salary)
Without having all details, documents etc no one can tell you whether you can win the case. Even there, a lot depends on what defence the company takes.
You have not stated where your employer was based, whether it's a company or Properitor, whether it's an office or factory, number of people employed, your salary level, etc. we do not know what was in your appointment letter or in the termination letter.
so how do you expect an answer to your above question other than balant guess work ?
28th October 2014 From India, Mumbai
If the employer is a company or a LLP, the owner is not required to sell his personal property to pay salary of the employees. Please show me which judgement says so.
28th October 2014 From India, Mumbai
Hello Anonymous,

I am not sure from where you got the impression/idea that going legal is a quickfix solution to situations like your's.

Many details of your situation are hazy [at best] OR missing [at worst].

Like Saswata Banerjee mentioned, with so many grey/missing areas in your posting, how do you expect anyone to give REALISTIC & ACTIONABLE suggestions?

W.r.t. your query: "What are the chances of winning the case if I present this in court as its already 2 weeks pass by", even assuming for a moment that the members in this Forum have ALL the details of your situation, do you think anyone can give a 100% assurance that you will get your money by going legal?

Even if you hire/appoint the best legal brains in the country [which would cost a bomb], there surely would be at least 1% chance that the Court decision MAY go against you--are you ready for it? And this is IN ADDITION to the time, effort, money that you would surely need to be ready to spend.

As it is, looks like you are from the middle class [not that this aspect is above all other aspects of the case]. So @ the EoD, what's your priority: to cut-down your losses OR spend more to shoot for something that always has some amount of uncertainty in the end-result?

The choice is YOUR'S.

Like Saswata Banerjee suggested, just move-on in your career/life LEARNING from this experience.

But, like I mentioned above: The choice is YOUR'S.

All the Best.

Rgds,

TS
28th October 2014 From India, Hyderabad
Dear Saswata Please search and you shall find what you wish to know. Regards Octavious
28th October 2014 From India, Mumbai
1. You have already taken action i.e. termination of service now you can not change the reason.
2. Termination seems to be under termination simpliciter condition by referring to terms of appointment.
3. In such cases employee need to pay notice period.
4. However, if you have referred specific allegations/misconduct as stated above i.e. mis-appropriation of funds you
Could have withhold his dues subject holding a enquiry & proving the alleaged charges in his termination letter.
Regards,
Suresh K. Singh
28th October 2014 From India, Mumbai
If you claim there are judgments of a certain matter, you should be able to share the link for the same. Telling the forum to search on its own means you don’t actually know of any such case.
28th October 2014 From India, Mumbai
Dear Anonymous,

I agreed with the comments given by senior members. I think, few points were missed which needs to be clear.

(1) Have you have resigned immediately after the incident of this misconduct (False - as stated by you) or this was done 4 months prior to your termination? It might be possible that during internal enquiry you have submitted the resignation & that's why employer had rejected your resignation and terminate your employment and hold your amount.

(2) On the contrary, employer don't want to pay you salary for 4 months and they terminated you archly?

(3) You were on probation. we would like to know for how long have you worked with that organization. As you were on probation & If your organization alleged you for such misconduct (for giving bribe against organization) within short span in the organization its conceivable.

Before taking any litigation you have to think & act about the actual incident. If you are at fault then we need to suggest you what action needs to take further. Taking legal action will take so much time and waste of money but if you are innocent (actually) and if you want to vindicate yourself then you can carry on for litigation. You can also send him a formal notice through lawyer to solve the issue within some time frame as it already took a long time. But please keep in mind its a lengthy procedure and in most of the cases it doesn't affect the organization at much.

Internal committee must be formed by the organization to prove the incident within stipulated time of 1-2 months. If you are looking for specific clause to mention of holding the salary in major misconducts then I think you are moving towards wrong way. I agree, they are just passing time ball to badger you.

However, as per INDUSTRIAL EMPLOYMENT (STANDING ORDERS), CENTRAL RULES, 1946, Notification No. L.R. 11 (37), date the 18th December, 1946 Para 14 is given below, but again we need to know your employment will be applicable here or not. Please note the allegation on your employment comes under Major misconduct of any law (employment):

(b) A workman who is placed under suspension under Cl. (a) shall, during the period of such suspension, be paid a subsistence allowance at the following rates, namely:

(i) Where the enquiry contemplated or pending is departmental, the subsistence allowance shall, for the first ninety days from the date of suspension, be equal to one-half of the basic wages, dearness allowance and other compensatory allowances to which the workmen would have been entitled if he were on leave with wages. It the departmental enquiry gets prolonged and the workman continues to be under suspension for a period exceeding ninety days, the subsistence allowance shall for such period be equal to three-fourths of such basic wages dearness allowance and other compensatory allowances:

Provided that where such enquiry is prolonged beyond a period of ninety days for reasons directly attributable to the workman, the subsistence allowance shall, for the period exceeding ninety days, be reduced to one-fourth of such basic wages, dearness allowance and other compensatory allowances.

(ii) Where the enquiry is by an outside agency or, as the case may be, where criminal proceedings against workman are under investigation or trial, the subsistence allowance shall, for the first one hundred and eighty days from the date of suspension, be equal to one half of his basic wages, dearness allowance and other compensatory allowances to which the workman would have been entitled to if he was on leave. If such enquiry or criminal proceedings gets prolonged and the workman continues to be under suspension for a period exceeding one hundred and eighty days , the subsistence allowance shall for such period be equal to three-fourths of such wages:

Provided that where such enquiry or criminal proceeding is prolonged beyond a period of one hundred and eighty days for reasons directly attributable to the workman, the subsistence allowance shall, for the period exceeding one hundred and eighty days , be reduced to one-fourth of such wages"

I also request senior members to correct/suggest my views.
29th October 2014 From India, Indore
Dear Saswata Hard work pays rich dividends, hope I have made my point clear to you. Regards Octavious
29th October 2014 From India, Mumbai
I, on the other hand, believe you should not out misleading posts on the forum that will result in someone working on a wrong or unjustified assumption. So please show us the judgement that you claim says employer must sell his personal property to pay wages of workers, or remove that post

30th October 2014 From India, Mumbai
Dear Saswata
You would appreciate the fact that I have till now dealt with you in professional manner. I would counsel you from making baseless allegations against me.
If you want to be heard and taken seriously by forum members than deal difference of opinion in more well thought manner. I recommend you stop from making baseless allegations of me misleading people/members, as it will not help you gain respect of other members of the forum.
If you want to carve a niche for your self then do that yourself by showing your strengths,ability and capability. I am confident of what I have stated, and I feel that I have passed the stage where in I feel the need to dazzle educated members of this forum with my brilliance.
The post will remain as it is and where it is, and will not be deleted and if you want you can search the judgement and satisfy your doubts. Period.
Regards
Octavious
30th October 2014 From India, Mumbai
#Anonymous
Simple Questions and Few Facts:
1. termination letter says following as highlighted:
Sub: Termination of Services
Thank you for your contribution with XXXXXXXX to date. The management has decided that we no longer require your services. Please take this as official notice, as of DATE, and you are hereby relieved from your services from today (i.e. 17th October 2014) onward.
You are requested to handover the company assets to the concerned department.
Thanks you for your esteemed services once again.
Thanks and Regards,
2. I was under probation and resignation was given on 16th Oct 14 (Asking for Pending Salaries, on my last day)
Question (Please Help): How to join new organization with this termination letter and what reason i can give new organization of not having a reliving letter.
Please help !!
31st October 2014 From India, Delhi
The answer to your last question is the only one I can give a suggestion on.
You can tell your prospective employer that the company had not been paying salary. 3 months salary was pending. Serving a months notice pay and then having lost more money didn't make sense, so I resigned and walked off. HR told me unofficially that trying to get this money was impractical.
31st October 2014 From India, Mumbai
#Anonymous
Thanks but can you help me in drafting a email (professional language), while i will be sharing the same with prospective employer on mail and i have a fear that h might take his appointment letter back by seeing the word termination on letter.
Please help !!
31st October 2014 From India, Delhi
See, the mail needs to be drafted considering the actual circumstances and what you wish to convey (how much of the details you want to give) and what was asked from you.
So someone else can't actually sit remotely and made it.
Make a draft and send me on personal message, I will correct it and send you then we can post it here for others to cee / comment
1st November 2014 From India, Mumbai
#Anonymous
Please let me know about, if any company will windup & Employers terminate to the employees due to costing, then would be company will liable to pay last & next months salary to employees or not. & how many months salary will get the employees from that company.
1st November 2014 From India, Noida
Please let me know about, if any company will windup & Employers terminate to the employees due to costing, then would be company will liable to pay last & next months salary to employees or not. & how many months salary will get the employees from that company.
Regard;s
Ruksana.
HR.
1st November 2014 From India, Noida
All employee will be eligible to notice pay applicable under the terms in his appointment letter or stands orders.
Plus gratuity for all those who worked for more than 5 years.
In addition, if covered under indistrial disputes act, they will be eligible for retrenchment compensation. Retrenchment compensation will be mostly equal to 1 month salary for every year worked.

1st November 2014 From India, Mumbai
1. while joining boss told to work for extra time once or twice in month . But after joining some days she told to sit extra time and complete work .I have started to sit little late to complete work .

after a month he told you cant go home without completing the work if you went i will cut from salary .Employee must have to come on time either he will be marked late 3 late mark it took 1 day leave and must have to sit as much more time to complete work. twice I had late because of train for 2 min but even though it is not considered the same day she shouted sit till late It means I have to complete a one year work within a 2 months offcourse there was a other employee was with me but boss mostly send him ouside .

2.boss given me a calculations of providend fund which actually mean i have to manupulate the last year salary calculation which i had done by 6 times because he himself was not sure about calculations and for that I had spend extra time because of his lack of knowlege in very much short time .and this not a single job there was many other work to do also.ie vat calculations , service tax , salaries calculations , voucher clearence , manual work etc etc

3 at a time she use to give one work then after 5 min another work again 3 work without giving a proper time for a single work and starts shouting harsly blamely .

4 she ask to come in to give her file or any small work or to find paper which was kept by herself only but she used to say no that was kept by you only this was her wordings this words she used to say daily loudly.

5.Once I had a fever I took permission sat at home that time she told me nowonwards you cant take a leave or a half day.

6.After few days she told me to go outside to collect files that is also in the evening time at 5 o clock i refused to go because it could take much more time to reach at home by 11 because of traffic.She told me many times to go outside and I refused to go.

In my offer letter it is mention that you have to give one month notice before leaving organisation But I was fed up with all these thing so much that I become weaker due to

and found illness also because of such type of frustation. It hurted me a lot because that time was a festival season and I couldnt enjoyed was having little fever .I send boss mail telling rejection of job from companies email id only.boss told me you have to sit till late or sign on termination letter but I refused to sit till late .

after that I argue and I said I cant stay here for more time I want to go and clear my dues .she told me I cant give rightnow . you call me on ................. this date .but that day she told me that i will not give you any money at any cost . my last month salary is pending please suggest me what to do ?
8th November 2014 From India, Gurgaon
1. while joining boss told to work for extra time once or twice in month . But after joining some days she told to sit extra time and complete work .I have started to sit little late to complete work .

after a month she told you cant go home without completing the work if you went i will cut from salary .Employee must have to come on time either he will be marked late.3 late mark it took 1 day leave and must have to sit as much more time to complete work. twice I had late because of train for 2 min but even though it is not considered the same day she shouted sit till late It means I have to complete a one year work within a 2 months offcourse there was a other employee was with me but boss mostly send him ouside .

2.boss given me a calculations of providend fund which actually mean i have to manupulate the last year salary calculation which i had done by 6 times as per instructions of boss because herself was not sure about calculations and for that I had spend extra time because of her lack of knowlege in very much short time .and this not a single job there was many other work to do also.ie vat calculations , service tax , salaries calculations , voucher clearence , manual work etc etc

3 at a time she use to give one work then after 5 min another work again 3 work without giving a proper time for a single work and starts shouting harsly blamely .

4 she ask to come into her cabin to give her file or any small work or to find paper which was kept by herself only but she used to say no that was kept by you only this was her wordings this words she used to say daily loudly.

5.Once I had a fever I took permission sat at home that time she told me nowonwards you cant take a leave or a half day.

6.After few days she told me to go outside to collect files that is also in the evening time at 5 o clock i refused to go because it could take much more time to reach at home by 11 because of traffic.She told me many times to go outside and I refused to go.It is not mentioned in offer letter that you will have to go outside etc etc.

In my offer letter it is mention that you have to give one month notice before leaving organisation But I was fed up with all these thing so much that I become weaker due to

and found illness also because of such type of frustation. It hurted me a lot because that time was a festival season and I couldnt enjoyed was having little fever .I send boss mail telling rejection of job from companies email id only.boss told me you have to sit till late or sign on termination letter but I refused to sit till late not signed the same.

after that I argue and I said I cant stay here for more time I want to go and clear my dues .she told me I cant give rightnow . you call me on ................. this date .but that day she told me that i will not give you any money at any cost . my last month salary is pending please suggest me what to do ?
8th November 2014 From India, Gurgaon
First,Malays start a new thread.
If you post a new problem in an existing thread, people will not notice it.
About your problem :
You need to give a months notice
You have stopped attending office without giving notice period.
So the company can refuse to settle your dues. They can deduct your notice pay from pending salary. That will definitely make it zero.
You have nothing in writing to show that your manager asked you not to come from next day, so there is no help there.
Rest of the things you wrote has little relevance and can not help you in this matter.
However, they are pretty normal occurrences in employment.

9th November 2014 From India, Mumbai
Dear Anonymous,

Just ignore your previous experience, salary (You means "the victim") etc., Go and join a new company where you will get salary and try to be honest in the new job atleast. This will help you to survive in your lively hood to get bread and butter.

And coming to the discussion, this is really a very interesting subject with lot of knowledge sharing touching many ideas and experiences.

Thank you all.

Regards,

Narendra

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18 SHAKTI PEETHAS
10th November 2014 From India, Mumbai
Dear All
Point 1 As per our Indian law , company or employer has no rights to hold the employees salary without any reason.
Point 2 During resignation period employer can give termination but the statement against to the employee must be found guilty of offence. It must be proved, both the parties can have the 3rd party or arbitrator to conclude.
Point 3 . All the compliance policies should be briefed to the employees at the time of joining and should be acknowledged by the employee.
Point 4. Termination clauses should be mentioned in the Offer ,Appointment ,Contract of employment letters.
termination should be legal , illegal termination may cause harm to the employer.
Employee can suit a case against the employer , if he has been terminated with out proper reason.
Many Thanks
Naveen
94442-86202
11th November 2014 From India, Madras
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