Facing Salary Withholding and Harassment While Sick: What Are My Legal Rights and Options?

Hello everyone, I am working in a small software product company. I joined in March this year. Unfortunately, I have not been well since the end of June 2014 due to acute pain in the spinal cord. As a result, I have had to take intermittent leaves. In August, my company inquired through HR about the genuineness of my sickness. I submitted all the details of my doctors, prescriptions, bills, hospital admission invoices, reports, etc., to apprise them of my situation.

However, in September, after working for the initial 7 days, I had to stay home due to my health reasons. I have been regularly seeing a doctor and possess all the related documents. I have been in regular communication with my supervisors and HR via telephone and messages. Nevertheless, they have withheld my last month's salary despite issuing a payslip. They have been threatening me to return to the office and work for a few days to clear my dues. Previously, I have worked in big Indian IT firms and MNCs.

Questions and Concerns

Now, my questions are:

1. Can they legally do this to a sick person when I have provided all medical prescriptions and detailed reports?

2. Can I file an FIR? If yes, where should I do it - at the nearby police station or the labor office?

3. If I decide to resign in this situation, do I need to serve a notice period of 3 months (assuming they will not release me before that with continuous pressure)?

4. If I resign without serving the notice period, will they withhold my dues?

I do not want to leave without resigning as I believe I have done nothing wrong. I need the money, especially since I am spending a significant amount on my recovery. Please advise, and I hope to receive a reply soon.

Regards,

Your "small software product company" would have small HR policies, and that is why they are not able to adjust with and follow the big Indian and MNC companies you worked for previously. Your apprehensions are genuine. Before you ask for the 7 days' salary you have earned by working in your company, you should ask yourself what would be your stand if you were in the position of the employer. If you go back to your attendance during the short period from March 2014 (when you joined) till now, in general, and the period from which you fell sick, you will understand why the company withheld your paycheck. It is very simple that there is always an apprehension that you will not turn up. Certainly, if you are on probation, the chances of the employee turning back would be rare. In such a scenario, the money earned by you could only be given to you along with full and final settlement after collecting the NOCs from all departments.

Whatever is said above is purely practical. Coming to the legal aspect, I would say that if you have been working in the capacity of a worker (the IT professionals would not like to be called workers but when you want protection available under the Industrial Disputes Act or Shops and Commercial Establishments Act or the official machinery for settlement of disputes i.e., the Labour Officer, and NOT the POLICE, you should adjust yourself to be called a worker; otherwise, you would not have any scope under Labor Law). Then, you can file a petition before the District Labour Officer for non-payment of the salary for the period you worked. If you have been denied casual leave or sick leave, then you can also file a complaint before him following the relevant provisions of the Shops and Commercial Establishments Act of the state where you are located. The DLO will investigate the matter and direct the company to pay you the salary withheld. The company will definitely respond if the DLO calls them, and you will get the money, which would be okay for you since you have been spending a lot on your treatment.

Now, if you have been working as a manager/supervisor with at least one employee reporting to you for any matter, then you will not get the protection available in the ID Act mentioned above, and the DLO will not interfere in your matter. So if that is the case, you can close it down right now.

If the case is first referred and if you have decided to move against the company as per the law, then also I have another practical piece of advice. You should be bold and should not be sensitive because you would win the case, but sometimes you may not get good employment elsewhere in the industry. The IT field is so organized that information about a candidate is available to the recruiting HR very easily, and no employer would prefer to have an employee who has a background of having filed a case against the employer. Though we the HRs will always say that it is the candidate's suitability to our organization culture and not his/her previous conduct that matters, everyone hesitates to take a risk, especially when the labor supply is very elastic! Therefore, think at least five times before taking action against your company.

Regards,
Madhu.T.K