Dear Seniors,
I am working in a pharma organization in the HR department. One of our senior chemists submitted her resignation, but her HOD has not accepted it. According to him, she has to serve at least a one-month notice period instead of three months, but she discontinued her duties the next day. We sent her the first absenteeism letter, and she responded by emailing another resignation without referring to the absenteeism letter. We have also sent her a second reminder. What should be the next procedure now?
We have now received another resignation from another Senior Chemist, and her notice period is also three months. In the second case, the employee applied for leave for three days, and after five days, we received a resignation via email citing unavoidable circumstances as the reason for leaving.
These chemists joined us as trainee chemists for one year. After successfully completing their training, they undergo a six-month probation period. During the probation period, if they decide to leave, they must serve a one-month notice period. Upon completing the probation period, they receive confirmation, and the notice period increases from one month to three months. This information is provided for reference.
We are currently facing an issue where employees receive their salaries on the seventh of the month, and they submit their resignations via email between the 9th and 10th of the month. How can we enforce the notice period in such cases? Should we accept resignations via email? Please advise.
Shailza
From India, Mumbai
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11I am working in a pharma organization in the HR department. One of our senior chemists submitted her resignation, but her HOD has not accepted it. According to him, she has to serve at least a one-month notice period instead of three months, but she discontinued her duties the next day. We sent her the first absenteeism letter, and she responded by emailing another resignation without referring to the absenteeism letter. We have also sent her a second reminder. What should be the next procedure now?
We have now received another resignation from another Senior Chemist, and her notice period is also three months. In the second case, the employee applied for leave for three days, and after five days, we received a resignation via email citing unavoidable circumstances as the reason for leaving.
These chemists joined us as trainee chemists for one year. After successfully completing their training, they undergo a six-month probation period. During the probation period, if they decide to leave, they must serve a one-month notice period. Upon completing the probation period, they receive confirmation, and the notice period increases from one month to three months. This information is provided for reference.
We are currently facing an issue where employees receive their salaries on the seventh of the month, and they submit their resignations via email between the 9th and 10th of the month. How can we enforce the notice period in such cases? Should we accept resignations via email? Please advise.
Shailza
From India, Mumbai
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The employee seems to work in UP. As per Section 20(2) of the UP Shops and Establishment Act, 1962, even if the notice period is one month or more and the employee fails to comply with the said term, the employer shall be entitled to forfeit not exceeding 15 days' salary of such employee from his unpaid salary. Thus, having worked for 10 days or more, that unpaid salary can be forfeited.
Thanks,
Sushil
From India, New Delhi
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Thanks,
Sushil
From India, New Delhi
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Dear Shailza,
Please consult the employees in a friendly manner to find out what tempts them to leave the company and if there are any remedies to overcome such situations. Also, please let us know if the increase in the notice period from 1 month to 3 months on either side has been consented to by all employees.
Lastly, most companies have switched to a 3-month notice period from 1 month. However, in practice, new employers rarely wait for the full 3 months for the employment of any candidate.
Thank you.
From India, Ahmadabad
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Please consult the employees in a friendly manner to find out what tempts them to leave the company and if there are any remedies to overcome such situations. Also, please let us know if the increase in the notice period from 1 month to 3 months on either side has been consented to by all employees.
Lastly, most companies have switched to a 3-month notice period from 1 month. However, in practice, new employers rarely wait for the full 3 months for the employment of any candidate.
Thank you.
From India, Ahmadabad
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Dear,
If you do not have his dues, then the only remedy is filing a civil suit for the recovery of dues. The other psychological remedy is mentioned in the experience certificate, which you may send by registered post stating that the employee has failed to pay the dues amounting to Rs. in respect of the notice period for which a civil suit is contemplated.
Thanks,
Sushil
From India, New Delhi
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If you do not have his dues, then the only remedy is filing a civil suit for the recovery of dues. The other psychological remedy is mentioned in the experience certificate, which you may send by registered post stating that the employee has failed to pay the dues amounting to Rs. in respect of the notice period for which a civil suit is contemplated.
Thanks,
Sushil
From India, New Delhi
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You cannot file a legal suit for the recovery of a short/full notice period. There may be several reasons to quit a job after receiving the salary, and one of the reasons, as I mentioned in my earlier post, is the three-month notice period, which is practically unfair to the employees.
From India, Ahmadabad
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From India, Ahmadabad
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It is recognized by Karnataka HC in Sri Anand v BEML that the shortfall notice period can be adjusted against the dues of the employee. It is thus evident that it is a debt of the employee which can be recovered by the employer filing a civil suit if it cannot be adjusted against the dues of the employee. Even under the UP Shops and Establishment Act, as stated earlier, the forfeiture of 15 days' salary does not mean the balance notice period salary is forgone. It can be recovered.
Thanks,
Sushil
From India, New Delhi
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Thanks,
Sushil
From India, New Delhi
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Most companies face these issues. The best remedy is not to issue Relieving or Experience letters to employees who do not serve the notice period. So when they move to another company, there would be a background check conducted.
At this stage, the previous employer can always state the reason that the employee's conduct was not right and they did not serve the notice period. This would create awareness for the hiring manager, and the job offer may be revoked as well.
This creates a loss for the employee with the following reasons:
1. He could either state he never worked for your company and join with lesser experience and pay.
2. His/Her job offer could be revoked, and as employees, they would learn to complete the notice period in future companies.
3. Word of mouth to ex-employees - That a bad review of the notice period was provided by HR and they are still unable to find a job.
4. Credibility and stability issues for future hiring.
If the salary payment date is the 7th of every month, do you have a loss of revenue? I am sure the Payroll department would have a certain cut-off date for the salary period. If there is none, then probably a timesheet ATS could be purchased or tracked, and the salary could be paid accordingly.
From India, Bangalore
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At this stage, the previous employer can always state the reason that the employee's conduct was not right and they did not serve the notice period. This would create awareness for the hiring manager, and the job offer may be revoked as well.
This creates a loss for the employee with the following reasons:
1. He could either state he never worked for your company and join with lesser experience and pay.
2. His/Her job offer could be revoked, and as employees, they would learn to complete the notice period in future companies.
3. Word of mouth to ex-employees - That a bad review of the notice period was provided by HR and they are still unable to find a job.
4. Credibility and stability issues for future hiring.
If the salary payment date is the 7th of every month, do you have a loss of revenue? I am sure the Payroll department would have a certain cut-off date for the salary period. If there is none, then probably a timesheet ATS could be purchased or tracked, and the salary could be paid accordingly.
From India, Bangalore
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The main issue raised by the querist is how to recover the notice period salary from those who abscond or send their intimation about inability to continue by email. The querist does not want to initiate disciplinary proceedings against such employees but is interested in recovering the notice period salary.
One cannot control attrition of employees if the working environment, wages, etc., are not conducive. Besides the courses of action suggested by me in the above thread, let us see whether the recourse of not providing an experience certificate to such an employee can be a safe measure against an employer.
Under section 32 of the UP Shops and Establishment Act and rule 18 of the rules, the employer is required to maintain registers, records, etc. Section 12 prescribes that no deduction shall be made by an employer from the wages of an employee except on account of the specified heads. Section 33 deals with contravention of provisions and states that any person who contravenes or fails to comply with any of the provisions of this Act or of the rules made thereunder, other than those of subsection (1) of Section 20, shall be guilty of an offense under this Act.
Under Rule 18(1)(b) and (c) of the Uttar Pradesh Dookan Aur Vanijya Adhishthan Niyamavali, 1963, Form G is maintained regarding the attendance register of employees.
One thing is clear: the employer cannot contract out contrary to the Shops and Establishment Act unless the terms are more beneficial to the employee. Thus, deduction of notice period pay beyond the limit permissible under the Act is barred and will be an offense.
As per the decision of the Madras HC in Hari Raj H v Shah Wallace Ltd, decided on 13.1.99, the notice period cannot be more than what is prescribed under the Shops and Establishment Act despite the agreement being contrary to it. Furthermore, it is the duty of the Inspector under the Act to ensure that the employer is complying with the provisions of the Act.
It is pointed out that under section 2(f) of the RTI Act, 2005, information from a private body can be obtained if it can be accessed by a public authority. As stated above, the attendance register and wages register can be accessed by the PIO under the RTI Act, 2005.
Thus, under the RTI Act, an employee can also seek information from the inspector under the Act regarding his attendance in the establishment from the date of his appointment till his last date in the establishment. Failure to give information is punishable.
By making a complaint to the inspector and asking for information on what steps he has taken to ensure compliance with the provisions of the Act and rules, and further asking for a copy of the relieving letter because he is a public authority under the Act and these pieces of information are within his purview, the employer cannot withhold the experience and relieving certificate. If an employer violates the provisions, the inspector is required to take appropriate action. And if he does not do anything, then even further remedies are there.
Even under the Model Standing Orders, every permanent workman is entitled to an experience certificate on his dismissal, discharge, or superannuation.
Regarding the concept that the job offer may be revoked by the future employer, then that employer will be endangering himself for being liable to pay damages. And in the suit for damages, if that employer discloses information imparted by the past employer pursuant to which he revoked the job offer, and that information happens to be contrary to the statutory provisions stated above, then the past employer can also be sued for damages. So every step has to be cautiously taken within the limits of the law and without the motive of victimization.
Thanks,
Sushil
From India, New Delhi
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One cannot control attrition of employees if the working environment, wages, etc., are not conducive. Besides the courses of action suggested by me in the above thread, let us see whether the recourse of not providing an experience certificate to such an employee can be a safe measure against an employer.
Under section 32 of the UP Shops and Establishment Act and rule 18 of the rules, the employer is required to maintain registers, records, etc. Section 12 prescribes that no deduction shall be made by an employer from the wages of an employee except on account of the specified heads. Section 33 deals with contravention of provisions and states that any person who contravenes or fails to comply with any of the provisions of this Act or of the rules made thereunder, other than those of subsection (1) of Section 20, shall be guilty of an offense under this Act.
Under Rule 18(1)(b) and (c) of the Uttar Pradesh Dookan Aur Vanijya Adhishthan Niyamavali, 1963, Form G is maintained regarding the attendance register of employees.
One thing is clear: the employer cannot contract out contrary to the Shops and Establishment Act unless the terms are more beneficial to the employee. Thus, deduction of notice period pay beyond the limit permissible under the Act is barred and will be an offense.
As per the decision of the Madras HC in Hari Raj H v Shah Wallace Ltd, decided on 13.1.99, the notice period cannot be more than what is prescribed under the Shops and Establishment Act despite the agreement being contrary to it. Furthermore, it is the duty of the Inspector under the Act to ensure that the employer is complying with the provisions of the Act.
It is pointed out that under section 2(f) of the RTI Act, 2005, information from a private body can be obtained if it can be accessed by a public authority. As stated above, the attendance register and wages register can be accessed by the PIO under the RTI Act, 2005.
Thus, under the RTI Act, an employee can also seek information from the inspector under the Act regarding his attendance in the establishment from the date of his appointment till his last date in the establishment. Failure to give information is punishable.
By making a complaint to the inspector and asking for information on what steps he has taken to ensure compliance with the provisions of the Act and rules, and further asking for a copy of the relieving letter because he is a public authority under the Act and these pieces of information are within his purview, the employer cannot withhold the experience and relieving certificate. If an employer violates the provisions, the inspector is required to take appropriate action. And if he does not do anything, then even further remedies are there.
Even under the Model Standing Orders, every permanent workman is entitled to an experience certificate on his dismissal, discharge, or superannuation.
Regarding the concept that the job offer may be revoked by the future employer, then that employer will be endangering himself for being liable to pay damages. And in the suit for damages, if that employer discloses information imparted by the past employer pursuant to which he revoked the job offer, and that information happens to be contrary to the statutory provisions stated above, then the past employer can also be sued for damages. So every step has to be cautiously taken within the limits of the law and without the motive of victimization.
Thanks,
Sushil
From India, New Delhi
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What if the employer makes the Salary payment on the first date of every month and there is no balance amount to be recovered from the employee against Notice Period ???
From India, Ahmadabad
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From India, Ahmadabad
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No deduction of any kind other than authorized as per Shops and Establishment Act or under the Payment of Wages Act is permissible; otherwise, the employer renders himself liable for prosecution or fines under the respective Acts. Any contract allowing the employer to deduct in this manner will be null and void.
Hypothetically, if a deduction in respect of notice pay has been made every month, what happens if an employee is to be terminated when no notice pay is payable by the employee? Would the employer not be estopped from proceeding with any disciplinary proceedings for misconduct given that the notice pay has already been recovered from the employee?
An employer cannot be allowed to earn unjust enrichment through interest on such recoveries, especially if the salary runs into lakhs!
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Sushil
From India, New Delhi
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Hypothetically, if a deduction in respect of notice pay has been made every month, what happens if an employee is to be terminated when no notice pay is payable by the employee? Would the employer not be estopped from proceeding with any disciplinary proceedings for misconduct given that the notice pay has already been recovered from the employee?
An employer cannot be allowed to earn unjust enrichment through interest on such recoveries, especially if the salary runs into lakhs!
Thanks,
Sushil
From India, New Delhi
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You are contradicting your own statement. Sometimes, you say that the employer can recover the notice pay from the employee, and other times you say that the employer cannot deduct any amount other than what is authorized by the S&E Act.
From India, Ahmadabad
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From India, Ahmadabad
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Shops and Establishment Acts permit the employee to give a notice period of specified days or pay salary in lieu thereof. It is a virtually authorized deduction. Even adjustments against the dues of an employee can be done in respect of the authorized notice period pay. Thus, the recovery of the notice period pay as per law is an authorized deduction.
Thanks,
Sushil
From India, New Delhi
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Thanks,
Sushil
From India, New Delhi
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Dear Mr. Sushil,
Your thread dated 19th Feb 2015 states that under Section 32 of the UP Shops and Establishment Act and Rule 18 of the rules, the employer is required to maintain a register, record, etc. Section 12 prescribes that no deduction shall be made by an employer from the wages of an employee except on account of the specified heads. Now, let us know what all specified heads consist of.
Secondly, I do not want to prolong the thread longer; just let the query poster know how to recover the notice period wherein the employee has left the employer on the day of the salary. The salary date being the 7th or 10th at the max, the employer can recover the salary for 7-10 days only, which they are doing. However, the query poster wants a remedy for getting the full 30 days' Notice Pay or any remedy thereof. I hope this clears all misconceptions posted earlier.
From India, Ahmadabad
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Your thread dated 19th Feb 2015 states that under Section 32 of the UP Shops and Establishment Act and Rule 18 of the rules, the employer is required to maintain a register, record, etc. Section 12 prescribes that no deduction shall be made by an employer from the wages of an employee except on account of the specified heads. Now, let us know what all specified heads consist of.
Secondly, I do not want to prolong the thread longer; just let the query poster know how to recover the notice period wherein the employee has left the employer on the day of the salary. The salary date being the 7th or 10th at the max, the employer can recover the salary for 7-10 days only, which they are doing. However, the query poster wants a remedy for getting the full 30 days' Notice Pay or any remedy thereof. I hope this clears all misconceptions posted earlier.
From India, Ahmadabad
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A perusal of sections 15 and 20 of the U.P. Dookan aur Vanijya Adhisthan Adhiniyam, 1962 and the rules framed thereunder as extracted below shows as to how deduction of wages has to be done:
Section 15 deals with Deductions from wages. It states no deductions from the wages of an employee shall be made except to such extent, and in such manner, as may be prescribed. Evidently, deduction shall be in such manner as may be prescribed under the rules. Section 20(2) envisages that where an employee fails to comply with the provisions of sub-section (1), his unpaid wages for a period not exceeding fifteen days may be forfeited to his employer. Thus by law the authorization is given to employer to forfeit not exceeding fifteen days unpaid wages. Under rule 12 of the U.P. Dookan Aur Vanijya Adhishthan Niyamavali, 1963, various heads of deductions and fines are there as extracted below. Thus if the employee has given payment of his notice period wages, then for the purposes of section 20(1), read with Explanation(i) under rule 12(1), every payment made by an employee to the employer or his agent shall, for the purposes of these rules, be deemed to be a deduction from wages. Now question arises what will be the position if he does not pay the notice period wages even, then evidently under rule 20(2), the employer is given power to forfeit wages upto 14 days. This is evidently on the lines as under section 60 CPC, the civil court is also barred to recover fully from the salary of an employee for the sake of enabling him to meet his food etc expenditure. As far your point that full month’s salary cannot be recovered, the said forfeiture does not mean that the right to recover debt of shortfall notice period is forgone. It is still there by filing suit in a civil court and under rule 12(1)(h), the court will be empowered to order thereof.
U.P. Dookan aur Vanijya Adhisthan Adhiniyam, 1962
CHAPTER IV
WAGE DEDUCTIONS AND NOTICES OF DISCHARGE
15. Deductions from wages.—No deductions from the wages of an employee shall be made except to such extent, and in such manner, as may be prescribed.
20. Termination of employment by an employee.—(1) No employee, other than an employee engaged for a specified period or in a leave vacancy, shall terminate his employment, except after notice of thirty days, or of such longer period, as may be required under the terms of his employment.
(2) Where an employee fails to comply with the provisions of sub-section (1), his unpaid wages for a period not exceeding fifteen days may be forfeited to his employer.
The U.P. Dookan Aur Vanijya Adhishthan
Niyamavali, 1963
[Section 15]
12. Deduction from wages.—(1) No deduction shall be made by an employer from the wages of an employee except on account of—
(a) fines;
(b) absence from duty;
(c) damage to or loss of goods expressly entrusted to the employee for custody, or loss of money for which he is required to account, where such damage or loss is directly attributable to his neglect or default;
(d) house accommodation supplied by the employer where the rent was being charged by the employer from the employee on the date the Act came into force;
(e) such amenities and services as the State Government may, by general or special order, specify.
Explanation.—The word "services" in this sub-rule does not include the supply of tools and raw materials required for the purposes of employment;
(f) recovery of advance or of overpayment of wages;
(g) income tax payable by the employee;
(h) amounts required to be recovered by order of a court or other authority competent to make such order;
(i) subscription to, or repayment of advance from, any provident fund to which the Provident Funds Act, 1925 (XIX of 1925), applies or any other provident fund recognised under Rule 3 of Part A of the Fourth Schedule to the Income Tax Act, 1961 (43 of 1961), or approved in this behalf by the State Government during the continuance of such recognition or approval;
(j) payments to co-operative societies approved by the State Government;
(k) revenue stamps required to be attached to pay receipts;
(l) supply of cooked food or refreshment during the hours of employment in accordance with any scheme previously approved by the Chief Inspector;
(m) payment of any insurance premium on the employee's life insurance policy or of contribution to the National Defence Fund or any Defence Saving Scheme approved by the State Government, provided that prior written authorization in this behalf is obtained from the employee;
(n) payment of security deposits agreed to in writing by an employee and in accordance with any scheme approved previously in writing by the Chief Inspector;
(o) employee's contribution to a superannuation fund approved under Part B of the Fourth Schedule to the Income Tax Act, 1961, or of any similar scheme agreed to in writing by employer and previously approved in writing by the Chief Inspector.
Explanation.—(i) Every payment made by an employee to the employer or his agent shall, for the purposes of these rules, be deemed to be a deduction from wages
(ii) Every deduction made by an employer or his agent from any deposit taken from an employee as security for the purposes of employment shall be deemed to be a deduction from wages.
(2) No fine shall be imposed on an employee—
(a) except for an act or omission specified by the employer with the approval of the Chief Inspector or the Deputy Chief Inspector; or
(b) without giving the employee concerned a reasonable opportunity of showing cause against the proposed fine:
Provided that the employer may if he is satisfied that for some reason to be recorded by him in writing it is not reasonably practicable to give the employee an opportunity to show cause, dispense with such opportunity.
(3) (a) Deductions may be made under clause (b) of sub-rule (1) only on account of the absence of an employee from the place or places where, by the terms of his employment he is required to work, such absence being for the whole or any part of the period during which he is so required to work.
(b) The amount of such deductions for absence from duty shall, in no case, bear to the wages payable to the employee in respect of the wage period for which the deduction is made, a larger proportion than the period for which he has been absent bears to the total period, within such wage period during which by the terms of his employment, he was required to work:
Provided that, subject to any orders made in this behalf by the State Government, if ten or more employees or where the total number of employees is 20 or less one-half of the total number acting in concert absent themselves without the due notice (that is to say without giving the notice which is required under the terms of their contract of employment), and without reasonable cause, such deduction from any employee may include such amount not exceeding his wages for eight days as may by any such terms be due to the employer in lieu of the notice.
Explanation.—For the purpose of this sub-rule, an employee shall be deemed to be absent from the place where he is required to work if, although, present in such place he refuses in pursuance of a stay-in-strike or for any other cause, which is not reasonable in the circumstances, to carry out his work.
(4) A deduction under clause (c) of sub-rule (1) shall not exceed the amount of damage or loss caused to the employer by the neglect or default of the employee and shall not be made until the employee has been given an opportunity of showing cause against such deduction.
(5) A deduction under clause (d) or clause (e) of sub-rule (1) shall not be made from the wages of an employee unless the house accommodation, amenity or service has been accepted by him, as the term of employment or otherwise, and such deduction shall not exceed an amount equivalent to the value of the house accommodation, amenity or service supplied and in the case of a deduction under clause (e) shall be subject to such conditions as the State Government may impose in the order specifying the amenities or services.
(6) Deductions under clause (f) of sub-rule (1) shall be subject to the following conditions—
(i) recovery of an advance of money given before employment began shall be made from the first payment of wages in respect of a complete wage period, but no recovery shall be made of such advances for travelling expenses;
(ii) recovery of advances of wages not already earned shall be subject to any order made by the State Government regulating the extent to which such advances may be given and the instalments by which they may be recorded;
(iii) no instalments for recovery of advance shall exceed one-third, or where the wages for any wage period do not exceed Rs 20, one-fourth of the wages for the period in respect of which the deduction is made; and
(iv) the amount and date of every advance and its repayment with the date thereof shall be entered in Form "G" prescribed under Rule 18.
(7) Deductions under clause (j) of sub-rule (1) shall be subject to such conditions as the State Government may, by order, impose.
(8) All such deductions and realizations shall be recorded in a register in Form "D".
The Hon’ble Madras High Court answered the similar query holding that unless a Standing order specifically provided for withholding of the salary for' the notice period such salary should not be withheld or deducted, is clearly erroneous.
But in the above UP Act such is not the situation:
Madras High Court
M.R. Appadurai vs Additional Commissioner For ... on 9 October, 1963
Equivalent citations: AIR 1964 Mad 265
5. The Standing Order enjoins upon the employee to give 14 days notice. The absence of any provision (sic) for deducting the salary for this period, if such notice is not given is no doubt not expressly stated in the standing, order. It would however be meaningless to insist upon the requirement of this notice unless there was a corresponding liability on the employee to forego the wages for tins, period of the notice not given. The learned counsel for the second respondent suggested that under the rules framed under the' Payment of Wages Act, no deduction.' for such reason is possible. Rule 16(2) states-
"No deduction for breach of contract shall be made from the wages of any employed" person unless there is provision in writing forming part of the terms of the contract of employment requiring the employee to give notice on the termination of such employment and the period of' notice does not exceed....."
It is not In dispute that the Standing orders formed part of the terms of the contract of employment. What ins- rule requires in order to enable deduction in the wages claimed is only that there should exist a provision for the giving of the notice. It does not further expressly require that there should be a stipulation that for want of the notice the pay is deductible for the period of the notice That is inherent in the provision for the giving of the notice and the rule clearly brings this out. It follows therefore that the view taken by the Additional commissioner for Workmen's Compensation that unless a Standing order specifically provided for withholding of the salary for' the notice period such salary should not be withheld or deducted is clearly erroneous.
Thanks
Sushil
From India, New Delhi
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Section 15 deals with Deductions from wages. It states no deductions from the wages of an employee shall be made except to such extent, and in such manner, as may be prescribed. Evidently, deduction shall be in such manner as may be prescribed under the rules. Section 20(2) envisages that where an employee fails to comply with the provisions of sub-section (1), his unpaid wages for a period not exceeding fifteen days may be forfeited to his employer. Thus by law the authorization is given to employer to forfeit not exceeding fifteen days unpaid wages. Under rule 12 of the U.P. Dookan Aur Vanijya Adhishthan Niyamavali, 1963, various heads of deductions and fines are there as extracted below. Thus if the employee has given payment of his notice period wages, then for the purposes of section 20(1), read with Explanation(i) under rule 12(1), every payment made by an employee to the employer or his agent shall, for the purposes of these rules, be deemed to be a deduction from wages. Now question arises what will be the position if he does not pay the notice period wages even, then evidently under rule 20(2), the employer is given power to forfeit wages upto 14 days. This is evidently on the lines as under section 60 CPC, the civil court is also barred to recover fully from the salary of an employee for the sake of enabling him to meet his food etc expenditure. As far your point that full month’s salary cannot be recovered, the said forfeiture does not mean that the right to recover debt of shortfall notice period is forgone. It is still there by filing suit in a civil court and under rule 12(1)(h), the court will be empowered to order thereof.
U.P. Dookan aur Vanijya Adhisthan Adhiniyam, 1962
CHAPTER IV
WAGE DEDUCTIONS AND NOTICES OF DISCHARGE
15. Deductions from wages.—No deductions from the wages of an employee shall be made except to such extent, and in such manner, as may be prescribed.
20. Termination of employment by an employee.—(1) No employee, other than an employee engaged for a specified period or in a leave vacancy, shall terminate his employment, except after notice of thirty days, or of such longer period, as may be required under the terms of his employment.
(2) Where an employee fails to comply with the provisions of sub-section (1), his unpaid wages for a period not exceeding fifteen days may be forfeited to his employer.
The U.P. Dookan Aur Vanijya Adhishthan
Niyamavali, 1963
[Section 15]
12. Deduction from wages.—(1) No deduction shall be made by an employer from the wages of an employee except on account of—
(a) fines;
(b) absence from duty;
(c) damage to or loss of goods expressly entrusted to the employee for custody, or loss of money for which he is required to account, where such damage or loss is directly attributable to his neglect or default;
(d) house accommodation supplied by the employer where the rent was being charged by the employer from the employee on the date the Act came into force;
(e) such amenities and services as the State Government may, by general or special order, specify.
Explanation.—The word "services" in this sub-rule does not include the supply of tools and raw materials required for the purposes of employment;
(f) recovery of advance or of overpayment of wages;
(g) income tax payable by the employee;
(h) amounts required to be recovered by order of a court or other authority competent to make such order;
(i) subscription to, or repayment of advance from, any provident fund to which the Provident Funds Act, 1925 (XIX of 1925), applies or any other provident fund recognised under Rule 3 of Part A of the Fourth Schedule to the Income Tax Act, 1961 (43 of 1961), or approved in this behalf by the State Government during the continuance of such recognition or approval;
(j) payments to co-operative societies approved by the State Government;
(k) revenue stamps required to be attached to pay receipts;
(l) supply of cooked food or refreshment during the hours of employment in accordance with any scheme previously approved by the Chief Inspector;
(m) payment of any insurance premium on the employee's life insurance policy or of contribution to the National Defence Fund or any Defence Saving Scheme approved by the State Government, provided that prior written authorization in this behalf is obtained from the employee;
(n) payment of security deposits agreed to in writing by an employee and in accordance with any scheme approved previously in writing by the Chief Inspector;
(o) employee's contribution to a superannuation fund approved under Part B of the Fourth Schedule to the Income Tax Act, 1961, or of any similar scheme agreed to in writing by employer and previously approved in writing by the Chief Inspector.
Explanation.—(i) Every payment made by an employee to the employer or his agent shall, for the purposes of these rules, be deemed to be a deduction from wages
(ii) Every deduction made by an employer or his agent from any deposit taken from an employee as security for the purposes of employment shall be deemed to be a deduction from wages.
(2) No fine shall be imposed on an employee—
(a) except for an act or omission specified by the employer with the approval of the Chief Inspector or the Deputy Chief Inspector; or
(b) without giving the employee concerned a reasonable opportunity of showing cause against the proposed fine:
Provided that the employer may if he is satisfied that for some reason to be recorded by him in writing it is not reasonably practicable to give the employee an opportunity to show cause, dispense with such opportunity.
(3) (a) Deductions may be made under clause (b) of sub-rule (1) only on account of the absence of an employee from the place or places where, by the terms of his employment he is required to work, such absence being for the whole or any part of the period during which he is so required to work.
(b) The amount of such deductions for absence from duty shall, in no case, bear to the wages payable to the employee in respect of the wage period for which the deduction is made, a larger proportion than the period for which he has been absent bears to the total period, within such wage period during which by the terms of his employment, he was required to work:
Provided that, subject to any orders made in this behalf by the State Government, if ten or more employees or where the total number of employees is 20 or less one-half of the total number acting in concert absent themselves without the due notice (that is to say without giving the notice which is required under the terms of their contract of employment), and without reasonable cause, such deduction from any employee may include such amount not exceeding his wages for eight days as may by any such terms be due to the employer in lieu of the notice.
Explanation.—For the purpose of this sub-rule, an employee shall be deemed to be absent from the place where he is required to work if, although, present in such place he refuses in pursuance of a stay-in-strike or for any other cause, which is not reasonable in the circumstances, to carry out his work.
(4) A deduction under clause (c) of sub-rule (1) shall not exceed the amount of damage or loss caused to the employer by the neglect or default of the employee and shall not be made until the employee has been given an opportunity of showing cause against such deduction.
(5) A deduction under clause (d) or clause (e) of sub-rule (1) shall not be made from the wages of an employee unless the house accommodation, amenity or service has been accepted by him, as the term of employment or otherwise, and such deduction shall not exceed an amount equivalent to the value of the house accommodation, amenity or service supplied and in the case of a deduction under clause (e) shall be subject to such conditions as the State Government may impose in the order specifying the amenities or services.
(6) Deductions under clause (f) of sub-rule (1) shall be subject to the following conditions—
(i) recovery of an advance of money given before employment began shall be made from the first payment of wages in respect of a complete wage period, but no recovery shall be made of such advances for travelling expenses;
(ii) recovery of advances of wages not already earned shall be subject to any order made by the State Government regulating the extent to which such advances may be given and the instalments by which they may be recorded;
(iii) no instalments for recovery of advance shall exceed one-third, or where the wages for any wage period do not exceed Rs 20, one-fourth of the wages for the period in respect of which the deduction is made; and
(iv) the amount and date of every advance and its repayment with the date thereof shall be entered in Form "G" prescribed under Rule 18.
(7) Deductions under clause (j) of sub-rule (1) shall be subject to such conditions as the State Government may, by order, impose.
(8) All such deductions and realizations shall be recorded in a register in Form "D".
The Hon’ble Madras High Court answered the similar query holding that unless a Standing order specifically provided for withholding of the salary for' the notice period such salary should not be withheld or deducted, is clearly erroneous.
But in the above UP Act such is not the situation:
Madras High Court
M.R. Appadurai vs Additional Commissioner For ... on 9 October, 1963
Equivalent citations: AIR 1964 Mad 265
5. The Standing Order enjoins upon the employee to give 14 days notice. The absence of any provision (sic) for deducting the salary for this period, if such notice is not given is no doubt not expressly stated in the standing, order. It would however be meaningless to insist upon the requirement of this notice unless there was a corresponding liability on the employee to forego the wages for tins, period of the notice not given. The learned counsel for the second respondent suggested that under the rules framed under the' Payment of Wages Act, no deduction.' for such reason is possible. Rule 16(2) states-
"No deduction for breach of contract shall be made from the wages of any employed" person unless there is provision in writing forming part of the terms of the contract of employment requiring the employee to give notice on the termination of such employment and the period of' notice does not exceed....."
It is not In dispute that the Standing orders formed part of the terms of the contract of employment. What ins- rule requires in order to enable deduction in the wages claimed is only that there should exist a provision for the giving of the notice. It does not further expressly require that there should be a stipulation that for want of the notice the pay is deductible for the period of the notice That is inherent in the provision for the giving of the notice and the rule clearly brings this out. It follows therefore that the view taken by the Additional commissioner for Workmen's Compensation that unless a Standing order specifically provided for withholding of the salary for' the notice period such salary should not be withheld or deducted is clearly erroneous.
Thanks
Sushil
From India, New Delhi
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