Dinesh Divekar
Business Mentor, Consultant And Trainer
Umakanthan53
Labour Law & Hr Consultant
Aniket Pathak
Sr. Executive Hr
Aditri
Service
+1 Other

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I am wotking in a private firm.I was on maternity leave since 1st October -17.after giving Salary for the month of October company held back my salary till now.In January via telephone they terminate me.Aftrt giving several mail asking for written notice and the reason for termination I did not recv any reply.I discussed this issue here & as suggested I went to rejoin office on 2nd April.The HR said management has decided not to keep me anymore in the company and I will be given all my dues-.According to me muy dues are 1.Due salary for 5 months
2.Notice period Salary
3.Gratuity
4 Leave encashment
5.PF
But now they r saying they will pay only the MB salary.Other dues will not be paid.In appointment letter it is mentioned that company provides gratuity.So what should I do now?Should I accept MB salary & fight for gratuity separately?or should I not accept anything unless they pay me all my dues.
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Dear Aditri,
What has happened with you is regrettable. Nevertheless, we have to find a way to come out of this unfavourable situation.
I recommend you approaching the Labour Officer of your area and submit application. When you go there, take with you proof of your employment like identity card, appointment letter, and printout of your correspondence with the company authorities. While giving application go to the office of the labour officer and talk with him also and explain your problem. It is not just a question of going to that office and submitting your application.
Please note that Labour Officer is a government appointed authority who handles labour issues. and is different from Labour Lawyer. Lawyers charge professional fee for providing their services whereas LO does the job at free of cost. Yes, some unofficial cost you might incur but it is small.
Now about eligibility of gratuity. Do you have continuous employment of approximately five years or more? If more than five years then only you are eligible for the gratuity.
Thanks,
Dinesh Divekar
Dear Ms.Aditri,
Had you mentioned about the capacity of your employment i.e., whether an employee falling under the category of workman as defined u/s 2(s) of the Industrial Disputes Act,1947, it would have been better for us to answer all your queries as they involve non-payment of statutory dues and illegal termination of employment as well.
1) Your total maternity benefit works out to be 182 days' salary. If the employer is prepared to pay the entire balance now, you can accept it for it is not going to affect your other claims.
2) The refusal to provide employment on your returning back from ML, in general, amounts to retrenchment which requires one month notice or pay in lieu thereof. Moreover, during the course of your authorised absence due to pregnancy, Sec.12(1) of the Maternity Benefit Act,1961 prohibits discharge or dismissal by the employer. Therefore it amounts to illegal retrenchment, if you are a workman or illegal termination of the contract of employment by the employer, if you are above the cadre of workman. Any way, you are entitled to retrenchment compensation plus notice pay in the former case and damages for breach of the contract of employment by the employer in the latter one.
3) No mention in your post about the applicability of the Payment of Gratuity Act,1972 to the establishment and the total length of your service in it. If both are affirmative, you can file a claim for gratuity under the above Act before the Controlling Authority for the area in which the establishment is situated.
4)Leave encashment on termination of employment is a matter dependent upon the labor law applicable to both the establishment and the employee or the specific terms of the contract of employment/ Leave Rules of the organization applicable.Any way it should be part of your F&F Settlement.
5) If you have decided not to go for further employment elsewhere, you can withdraw your PF ; otherwise arrange to transfer your account to the new establishment where you may join in future.
Thank you all.Mr. Umakanthan can you please tell me about "category of workmen u/s 2,industrial disputes act 1947"?I do not know this.I have worked there for almost 6 years continiously.It is a ISO 9001:2014 accredited company.Does mentioning of providing gratuity is appointment letter itself oblige the employer to pay gratuity?
Dear Aditri,
PF is something you need to claim from PF authorities. You are eligible for gratuity and leave encashment.
Instead of asking for full n final you first ask them to continue the employment even if you don't want to continue. Please visit Labor office for illegal termination while being on leave. Let them get the letter from labor office did you took the advise from labor office in the said matter as suggested by the learned members of this fraternity.
1.First write a letter to your appointing authority. Appointing authority only have powers to terminate employee.
2.State that you are on maternity leave and enclosed leave approval document.
3. Share name,date and time when either you called or u recd call from company with details of verbal telephonic communication.
4.Give reference clauses of ur appointment letter related with what u were supposed to get from company.
5.State u have enclosed appointment letter xerox copy.
6. State : When an employee who is on approved leave and that too on maternity leave stating on phone that you are terminated this itself is crime from humanity and this may affect on you physically and mentally and if anything wrong happened they will be responsible.
7. Prepare ur chart of compensation of all legal dues and enclosed copy.
8 Mark this letter copy of to : 1.Asst Commissioner of Labour 2. Police station nearby your company's area
9. All the letters should be strictly under Regd A.D. so that you will get acknowledgement.
Hope this may help you.
With Best Regards,PRASHANT DESHPANDE
Dear Aditri,
Whether your employer issued any termination letter or verbal communication ?
How many workmen/employee/staffs and mangers working in that firm?
What is your position/designation/ work you do?
Have you communicate the date to resume the duty after MB?
You immidiately write a letter and send in email that you will resume the duty on x date and hard copy in regd post. and you go on particular date to resume the duty. If they say anything you ask them to give in writting even though the termination letter by doing this you can make your case strong . Do not frail your case unnecessarily. Keep fighting spirit to have the justice.
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