Labour Law & Hr Consultant
Principal Hr Consultant
PRABHAT RANJAN MOHANTY
Hr & Ir
However, his stay in the organization for 10 days without appointment order can not nullify the fact of his employment which subsequently got terminated by his resignation with immediate effect. Also, the contract of employment between the parties thus subsisted without any conditions and so got unilaterally terminated by the employee. Then, why the Management should with hold his salary for his duty period on the pretext of preparing his F and F which comprises of nothing other than his due salary and call for certain documents?
Contribution to EPF is based only on employment and the earnings out of it. When the employment came to cessation by resignation with immediate effect, why his name should be continued to be shown in the pay roll? When the EPF contribution for the earnings of the resigned individual was remitted already, how can any EPF authority insist upon further contribution just because of the inadvertent act of showing his name on the pay roll?
Since the unconditional contract of employment was already over, take immediate steps to disburse his duty salary and close the matter with the approval of the CEO.
22nd August 2017 From India, Salem
As per our company rule even if someone works for a single day to complete his F and F he needs to submit some documents - basically some NOCs from different departments. And this gentleman didn't submit any of these, however to calculate his salary and to submit the tds we had to collect the NOCs internally and calculated the amount payable. Subsequently we had already issued him the form 16 even though he was not paid as the amount is still "Payable" in our system. I can't comment on why we have such a rule as this is the prevalent rule of our organization.
And thus since the file is still open his name is still at payroll. I also failed to understand how come we are showing him as one of our employees in payroll system just in the pretext of "F and F pending due to employee not initiation" when he had resigned and we had accepted that.
As per my understanding the relationship has ended long back, still we are showing him as our employee and we are carrying his name internally.
Very recently this case was handed over to me and the first question I raised was this only. The second question that I raised was we showed his salary accrued in the month of August, 2016 and declared accordingly in IT department, on the other hand we had remitted the EPF amount in December with other employees in December wages (Not as arrears). I think it's a glaring mistake done by our internal system.
However going to CEO is not possible in such a huge organization, and I have already tried talked to the VP- HR and she refused to give me the required approval to strike off his name.
That leads to one option only - the employee cooperates after a year of leaving the organization, we pay him and we strike him off the system EXCEPT you all suggest me something different.
Please bear with me as I'm very new to this profession and in such huge organization I found nobody is interested to own up this case. Therefore I am given the responsibility with no armor at all at my disposal.
Please tell me onething can we strike his name off the payroll system marking "F&F pending due to employee non cooperation"? IS that legally possible and also from the organizational HR point of view?
Thank you in anticipation.
22nd August 2017 From India, Kolkata
Very well I can understand your precarious position. Rules are man-made and so are procedures for the effective implementation of the Rules thus laid down. When a particular rule becomes unimplementable for lack of initial compliance of the basic procedures connected therewith, no use in hankering after other supplementary procedures. Well - an employee intending or permitted to exit the organization has to submit NOC s/ No Due Certificates from other sections/departments in the same organization for getting his F&F. In your case just after a sojourn of 10 days, the employee left the organization almost more than a year ago once for all. How can you ask him to come back now and get the NOCs from your internal departments for clearance of F&F?. Can't the HR collect them straight away now from the concerned departments?
I don't know why the VP-HR acts so - whether due to ignorance or her attitude of buck passing! In such a helpless situation do one thing - write to the erstwhile employee to furnish the NOCs and get his F&F and simultaneously send a circular note to the concerned departments to inform whether any dues are still there from the employee either material or monetary. Then consider striking off his name from the payroll with the endorsement " Resigned and settled accounts".
22nd August 2017 From India, Salem
Thanks for your understanding. But we have already collected NOCs from different departments internally and then only we calculated the payable salary and eventually issued a form 16 to him.
So we have collected the documents, the only problem is he didn't send us those documents and that's why he is still at our payroll. The main problem is we are getting very rigid at our position of not paying him and clearing his dues unless he presents the documents himself, on the other hand we are ready to pay him. Unfortunately I fail to understand the reason behind such position.
So since we have collected the documents internally already can I suggest my seniors to withhold his dues and strike him off?
22nd August 2017 From India, Kolkata
It seems from the description of the matter the whole mess was due to your management. The appointment terms to be considered without " Notice Pay",in the instant matter. When the employeed had already tendered his resignation and not continuing job, means concerned abandoned his service voluntarily as not binding by any terms of your organisation. You could have broadly removed the name from the roll from the date of resignation.
Mr. Umakanthan has rightly suggested to end-up the matter by releasing payment of 8-10 days as per his attendance in muster roll. The employee is not binding to any of your organisational rules, as he was enrolled and performed work wothout any conditions till his resignation dt. 31.08.2016. Your organisation is liable under payment of wages for not disbursing wages for the period of work till now. The contribution to EPF for 8-10 days as the case maybe for the month of August'2016 not for other period, since the particular employee did not have any earning.
It will be wiser to close the capter as early as possible with a note of approval from your head of Organisation.
23rd August 2017 From India, Mumbai
1. Its very strange that the employee joined without the appointment order.
2. This indicates that the basic document was not prepared which lays down the ground rules of employer employee relationship. Please put proper process in place so that no employee joins without this basic document.
3. Please call the employee to complete the formalities. Keep documents ready so that he does not feel any difficulty in completing the process and goes out as your brand ambassador.
24th August 2017 From India, Thane
As you have already made the payments, the PF will have no issues, also, as till now his salary was basically zero, there is no issues with PF.
The employee if wanted that 10 days of salary would have reverted ages ago... It is already a year now. So just park the amount as pending F&F in the accounts department and close the case.
26th August 2017 From India, Mumbai
Unfortunately I have suggested that, but I am told to wait. I don't know what they are waiting for. It seems we still are waiting for that employee to send those documents in order to complete the f&f.
Infact I have enquired and came to know that the name of this employee is still present in the list of the active employees in our epfo page. Which means he's present at our payroll, as per epfo he's still working with us. My only concern is why we are carrying his name for so long and when I asked this question I was told the employee submitted his resignation but we asked for some documents in order to complete the full and final, do technically he is still our employee. But what I fail to understand is when without signing any appointment letter he worked for 10 days and then he submitted his resignation with immediate effect a year back how could he still be our employee!.
My line manager also told me that he didn't comply with exit procedure set by the company so he's still our employee, but we didn't get his signature on any paper for example appointment letter where the exit clause was mentioned, thus as per my best knowledge he was not bound to follow any of our company policies. He came, worked for 10 days and left after resigning.
I have penned down the entire issue, can some revered HR practitioner guide me on his employability with us? Is he still our employee?. If yes what should I do right now? I was under impression that he is not our employee anymore but my organization is in the views that he's still our employee.
2nd September 2017 From India, Kolkata
An employee was permitted to work without a formal appointment order in writing and he left the job suddenly after 10 days by submitting his formal resignation with immediate effect. Afterwards, he did not turn up for work and practically he is not in your service which is admitted by you also. In order to formally accept his resignation and finalise his full and full settlement of his accounts including the payment of 10 days duty salary you gave him some instructions which was not yet complied with by him. In the meanwhile, you deducted the proportionate EPF contributions from his duty salary though it is undisbursed and remitted to the EPFO. You have also ascertained that he had no dues to the organization from the other internal departments and collected the NOCs from them on your own. Now your management insists that he should go over to your office in person and affix his countersignature in those NOCs for getting his unpaid salary.
All the members responding to your post including myself have clearly stated that (1) you can not insist on the exit conditions now when you failed to furnish them formally to him by means of a written appointment order (2) the question of paying further contributions to the EPFO does not arise as the individual had not earned any salary after his resignation though his name is still continued in the payroll.and (3) to keep his duty salary on hold after finally informing the ex-employee about formalities to be complied with by him in order to get his duty salary and close the matter therewith if he fails to do so.
What else you and your management expect to be suggested more?
I am constrained to state that your repeated follow-ups is only indicative of your wanton refusal to understand the import of our suggestions simply based on the rigid rules of your organization and your blatant failure to follow them at the very out set for obvious reasons.
Therefore, if you are magnanimous, immediately release the payment treating this as a special case. On the contrary, if your management is very pedantic, inform the ex-employee that his salary would not be disbursed until and otherwise he complies with the exit formalities, wait for some time and if no response remit the amount of salary into the unclaimed amounts A/C of the State Labour Welfare Board, remove his name from the payroll and close the file and if he institutes any case in future face it legally.
2nd September 2017 From India, Salem
Since none in my company is cooperating with me as far as this case is concerned I should park this case for now I believe.
I'm not rigid, but unfortunately the rules in my organization are. Infact that gentleman told me yesterday over ph that he has been working with another company ever since and we are also carrying his name as our employee so he asked me a question that does that mean he is doing two jobs at a time? Is this a dual employment and frankly speaking I had no answer to his question. He even told me that he resigned and we never told him that his resignation wasn't accepted so how come he is still at our system and I had no ans as usual.
Finally I have requested him to comply and asked him the just fill up those papers and scan and send it to me in order to complete the exit formalities and he replied he wouldn't do any such thing.
And if I'm not wrong we neither can take any legal step against him to make him compel to complete the formalities nor we can carry his name at payroll forever till the sun rests.
Hence I better should park this issue as my seniors in the organization are neither showing me any way out nor they are hearing to any of my advices.
Thank you very much sir.
2nd September 2017 From India, Kolkata