Saswatabanerjee
Partner - Risk Management
Octavious
Hr Manager
Greekrajnaren
Professional
Tajsateesh
Recruitment/talent Acquisition, Career Counselling
SURESH K SINGH
Hr Professional
+3 Others

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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

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

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

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
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.


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

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

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 ?

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.
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


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