You are contradicting your own statement, sometimes you say that Employer can recover the Notice Pay from the employee and sometimes you say that the Employer cannot deduct any amount other than authorized by S&E Act.
From India, Ahmadabad
734From India, Ahmadabad
Shops and Establishment Acts permit the employee to give notice period of specified days or pay salary in lieu thereof. It is virtually authorized deduction. Even adjustment against dues of employee can be done in respect of authorized notice period pay. Thus recovery of notice period pay as per law is authorized deduction.
Thanks
Sushil
From India, New Delhi
Thanks
Sushil
From India, New Delhi
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 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 consists 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 Salary, the salary date being 7th or 10th at the max the employer can recover the salary for 7-10 days only which they are doing, but the query poster want 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
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 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 consists 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 Salary, the salary date being 7th or 10th at the max the employer can recover the salary for 7-10 days only which they are doing, but the query poster want 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
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
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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