Facing Salary Issues After Probation: Can I Legally Claim My Unpaid Wages?

I am a Business Development Manager in one of the IT companies. I joined the company on 1st August 2012 with a 6-month probation period. In December 2012, the company owner informed me to leave the company due to not achieving targets. The company has not provided me with the last 2 months' salary. My gross salary is 30,000 per month with a basic of 15,000 per month. We receive our salary in cash. I only have an appointment letter as proof of my employment with the company. The company was not contributing to PF and ESI, and no targets were specified in writing, only communicated through emails.

Please guide me on any legal laws that can help me retrieve my pending salary. I was serving a 15-day notice period, and it was supposed to end on 30th December 2012, but on 21st December, the owner asked me to leave.

Will I be able to recover my salary? I look forward to your responses soon.

Termination and Salary Withholding

If it is termination, then the reason for termination is required. If the clause is poor performance and business loss, then it will be in their favor. However, that does not mean they can hold back the salary for two months. We can ask for the reason for the salary hold, and only then can a conclusion be reached.

Unless the company is completely unethical, they will rarely hold back two months' salary unless the performance issue is so serious that it's as good as nil. How much business have you generated? What is the pipeline that has been achieved? How many prospects did you meet? Did you keep the owners apprised of your progress?

Also, why did you not approach the owners when you did not get your salary in the previous months? What was their response? I have a feeling the whole truth is not revealed.

As for a legal case, with just an appointment letter, you have little chance of getting anything from them. It depends on what other proof there is that you attended work.

I am terribly sorry to hear about what happened to you. During the probation period, an employer can terminate one's job if one's performance is not up to the mark. However, even in such a case of underperformance, there is a well-laid procedure that good companies usually follow to avoid any litigation that may arise due to termination. This includes giving a chance for improvement. Good companies always track the performance of all newcomers. Whenever the performance of a newcomer shows signs of wilting or going haywire, the HR Manager steps in. Along with the superior of the underperformer, they inform the employee that their performance needs improvement. They pinpoint weak areas and suggest ways to enhance performance, establishing a timeline for improvement. In such cases, the probation period is often extended by several months (usually by three months). If the employee does not improve their performance even during the extended probation period, their job is terminated as per the terms and conditions of employment.

In your case, no such procedure was followed, and you were suddenly informed to wrap up at the end of the day. This is not only highly unethical but also very unprofessional. Unfortunately, many companies in India believe and act in such a manner. Additionally, management has no right to withhold your salary.

Your salary of 30K may also not make you eligible for PF as you may be classified as an Excluded Employee under the Provident Fund and Miscellaneous Provisions Act, 1952. The ESI Act, 1948, may not apply to you as well.

As you mentioned working as a Business Development Manager in your company, you would have been performing managerial functions and activities. Therefore, you do not fall under the definition of a workman and cannot approach the Labour Department for redressal of your grievance.

You may consider seeking the assistance of a good Civil Lawyer to send a legal notice and file a civil suit. While it may cost you some money and time, it is worth trying.

All the best.

Regards,
Rakesh Srivastav

I am writing to address the issue of non-payment of my salary and the reasons behind it. It is important to note that no employer has the right to withhold an employee's salary, whether it is linked to any agreement or specific conditions. Such actions constitute a violation of several applicable acts.

Despite bringing this matter to your attention, there has been no improvement or positive response from your end. Therefore, I kindly request you to take immediate action by approaching the office of the Deputy Labor Commissioner to file a formal claim.

Thank you for your prompt attention to this matter.

Regards,
Manohar