Please Help with Next Step:
History: An employee is terminated (on false grounds like misconduct - giving a bribe against the organization). However, he has submitted his resignation but instead of accepting the same, the organization terminates the employee for the above reason.
Queries to ask:
1. The organization has withheld the last 4 months' salary of this employee. Why 4 months? All salaries were withheld because the company was unable to pay its employees due to a lack of funds. The company is not paying the employee his dues and Full and Final settlement (F&F). Is the company allowed to take such action, like not giving dues and F&F in the case of termination, as there is no such clause mentioned in the offer letter? If not, how can one claim dues from the organization? Can the individual take legal action?
2. The termination was immediate, as the employee was in the probation period. The offer letter clearly states that in the case of termination during the probation period, the company is liable to provide a 2-week notice or salary in lieu. The organization is also not providing this to the employee.
3. How can an organization issue a termination letter after receiving a resignation from an employee? Is it correct to take this case to court as the organization is not willing to clear the employee's dues, and no experience letter is being provided?
Please help!!
Regards
From India, Delhi
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History: An employee is terminated (on false grounds like misconduct - giving a bribe against the organization). However, he has submitted his resignation but instead of accepting the same, the organization terminates the employee for the above reason.
Queries to ask:
1. The organization has withheld the last 4 months' salary of this employee. Why 4 months? All salaries were withheld because the company was unable to pay its employees due to a lack of funds. The company is not paying the employee his dues and Full and Final settlement (F&F). Is the company allowed to take such action, like not giving dues and F&F in the case of termination, as there is no such clause mentioned in the offer letter? If not, how can one claim dues from the organization? Can the individual take legal action?
2. The termination was immediate, as the employee was in the probation period. The offer letter clearly states that in the case of termination during the probation period, the company is liable to provide a 2-week notice or salary in lieu. The organization is also not providing this to the employee.
3. How can an organization issue a termination letter after receiving a resignation from an employee? Is it correct to take this case to court as the organization is not willing to clear the employee's dues, and no experience letter is being provided?
Please help!!
Regards
From India, Delhi
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Dear,
Please clarify your actual concerns because your question is not clear. Here are some points to note:
1. Holding of salary for 4 months: If a company finds an employee involved in any anti-activities, the company may withhold the salary for the next 4 months or for any duration. However, the company should pay at least 60% of the salary to cover household expenses.
2. Termination: If the company has not accepted the resignation, then the company can proceed with termination.
3. Legal action: Without a clear understanding of the situation, I cannot provide specific advice.
Hemant Kumar
Hemantarchna@gmail.com
From India, New Delhi
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2Please clarify your actual concerns because your question is not clear. Here are some points to note:
1. Holding of salary for 4 months: If a company finds an employee involved in any anti-activities, the company may withhold the salary for the next 4 months or for any duration. However, the company should pay at least 60% of the salary to cover household expenses.
2. Termination: If the company has not accepted the resignation, then the company can proceed with termination.
3. Legal action: Without a clear understanding of the situation, I cannot provide specific advice.
Hemant Kumar
Hemantarchna@gmail.com
From India, New Delhi
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If the post is of a true case, then it would also make sense to put in some basic things - is the concerned employee you? If not you, then what relation does the employee have with you and what is your interest in the matter.
Are the accusations true? False? Or do you think they are false or want them to be false?
I still do not understand why an employee is still there when the company has not paid him for 4 months. I can even understand permanent employees willing to stay on, but in probation? He worked for free?
Back to the original question - the company can terminate him, even if he has resigned. If he is terminated during probation, with no reason given as is allowed under the terms of employment, then he has to get his notice pay as stated in the appointment letter/standing orders.
If the termination is on grounds of misconduct and is serious - involving moral turpitude, then no notice pay is required. But a domestic enquiry must be conducted, and the employee given an opportunity to be heard and allowed to defend himself.
About non-payment of salary, you can complain to the labor commissioner's office and seek help. Going to court is of little meaning as time and cost are too high. It would then make more sense to forget it and move to another job. If the company does not have money to pay salary for 4 months, and the owners can't or won't get money from their own sources, then at the end of everything, you still don't get the money.
The last point you made - the experience letter. It's 4 months under probation. With termination under the accusation of bribery. Does such a letter have any value? Instead, say you worked for 4 months but they didn't have money to pay so you walked off and have no experience letter. And that you didn't think it was worth wasting any more time there hoping to get an experience letter and working without pay for another 2 months.
From India, Mumbai
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Are the accusations true? False? Or do you think they are false or want them to be false?
I still do not understand why an employee is still there when the company has not paid him for 4 months. I can even understand permanent employees willing to stay on, but in probation? He worked for free?
Back to the original question - the company can terminate him, even if he has resigned. If he is terminated during probation, with no reason given as is allowed under the terms of employment, then he has to get his notice pay as stated in the appointment letter/standing orders.
If the termination is on grounds of misconduct and is serious - involving moral turpitude, then no notice pay is required. But a domestic enquiry must be conducted, and the employee given an opportunity to be heard and allowed to defend himself.
About non-payment of salary, you can complain to the labor commissioner's office and seek help. Going to court is of little meaning as time and cost are too high. It would then make more sense to forget it and move to another job. If the company does not have money to pay salary for 4 months, and the owners can't or won't get money from their own sources, then at the end of everything, you still don't get the money.
The last point you made - the experience letter. It's 4 months under probation. With termination under the accusation of bribery. Does such a letter have any value? Instead, say you worked for 4 months but they didn't have money to pay so you walked off and have no experience letter. And that you didn't think it was worth wasting any more time there hoping to get an experience letter and working without pay for another 2 months.
From India, Mumbai
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Dear Saswata, you need to read the employment Agreement thoroughly, all the terms and conditions shall be executed that contain such agreement regards. Abdul Malik
From Afghanistan, Shar
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From Afghanistan, Shar
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Since we don't have the agreement, we on the forum have to assume it's standard. This always happens with us here ;)
Which is why I started my point saying - if the post is true ... Cause we don't know whether the employee was innocent or guilty. So I have tried to consider standard conditions and given the options that I think are the best. It's all subject to the complete information being available.
However, I do not think the employment agreement as such would make much of a difference. First, there are already laws that govern such things (Industrial Employment Standing Orders Act being the main) and existing HR processes, employee handbook, and manual (to the extent it does not violate the law).
I do not think most appointment letters or their attachments would give details of the process to be followed in case of fraud, theft, negligence, or whatever the employee was actually accused of.
We do not even know what the termination letter says. Does it say termination during probation under the terms of the appointment letter? Or does it say termination on account of fraud? If it's the latter, then the company has probably made a grave mistake in not conducting a domestic enquiry.
I hope I understood your point and am not barking in the wrong direction.
From India, Mumbai
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Which is why I started my point saying - if the post is true ... Cause we don't know whether the employee was innocent or guilty. So I have tried to consider standard conditions and given the options that I think are the best. It's all subject to the complete information being available.
However, I do not think the employment agreement as such would make much of a difference. First, there are already laws that govern such things (Industrial Employment Standing Orders Act being the main) and existing HR processes, employee handbook, and manual (to the extent it does not violate the law).
I do not think most appointment letters or their attachments would give details of the process to be followed in case of fraud, theft, negligence, or whatever the employee was actually accused of.
We do not even know what the termination letter says. Does it say termination during probation under the terms of the appointment letter? Or does it say termination on account of fraud? If it's the latter, then the company has probably made a grave mistake in not conducting a domestic enquiry.
I hope I understood your point and am not barking in the wrong direction.
From India, Mumbai
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Dear Anonymous,
Merely leveling an allegation against anyone without valid proof will not stand the test of law in court. Therefore, the company cannot withhold any employee's salary without a valid reason supported by appropriate evidence. Termination issued after an employee has submitted their resignation can be seen as an afterthought by the employer, attempting to avoid paying any outstanding dues owed to the employee.
There are various Supreme Court judgments clearly stating that an employer must prioritize paying the salaries of all employees before settling any other debts. In cases of necessity, the employer may even need to sell personal property to fulfill their obligations to their employees.
To initiate action, you can file a First Information Report (FIR) with the local police station against the employer for criminal breach of trust due to non-payment of salary as per the terms and conditions of your employment contract.
Regards,
Octavious
From India, Mumbai
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Merely leveling an allegation against anyone without valid proof will not stand the test of law in court. Therefore, the company cannot withhold any employee's salary without a valid reason supported by appropriate evidence. Termination issued after an employee has submitted their resignation can be seen as an afterthought by the employer, attempting to avoid paying any outstanding dues owed to the employee.
There are various Supreme Court judgments clearly stating that an employer must prioritize paying the salaries of all employees before settling any other debts. In cases of necessity, the employer may even need to sell personal property to fulfill their obligations to their employees.
To initiate action, you can file a First Information Report (FIR) with the local police station against the employer for criminal breach of trust due to non-payment of salary as per the terms and conditions of your employment contract.
Regards,
Octavious
From India, Mumbai
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Termination Letter Does Not Define Any Fraud or Misconduct. It only defines "Termination of Services" WITHOUT highlighting any reason. It's all verbal (Serious Misconduct like giving/taking a bribe, etc).
Seems like an aftereffect of the submission of my resignation as the company is not willing to pay dues. Questions: How to get my pending dues as the organization is not giving with repeated polite requests (4 Months salary, reimbursements, etc). Am I eligible for notice pay (Offer letter clearly says: 2 weeks notice period or salary if terminated in probation)? What are the chances of winning the case if I present this in court as it's already 2 weeks past? Please suggest!! Thanks all for your suggestions.
Regards
From India, Delhi
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Seems like an aftereffect of the submission of my resignation as the company is not willing to pay dues. Questions: How to get my pending dues as the organization is not giving with repeated polite requests (4 Months salary, reimbursements, etc). Am I eligible for notice pay (Offer letter clearly says: 2 weeks notice period or salary if terminated in probation)? What are the chances of winning the case if I present this in court as it's already 2 weeks past? Please suggest!! Thanks all for your suggestions.
Regards
From India, Delhi
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As we have repeatedly said on this forum - any court action in India takes a very long time and, in the end, is probably found to be not worth it. In any case, what will you get from a company that does not have money to pay its employees for 4 months? (In fact, I still can't understand why someone would work for 4 months without a salary.)
Without having all the details, documents, etc., no one can tell you whether you can win the case. Even then, a lot depends on what defense the company takes. You have not stated where your employer was based, whether it's a company or proprietor, whether it's an office or factory, the number of people employed, your salary level, etc. We do not know what was in your appointment letter or in the termination letter.
So how do you expect an answer to your above question other than blatant guesswork?
From India, Mumbai
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Without having all the details, documents, etc., no one can tell you whether you can win the case. Even then, a lot depends on what defense the company takes. You have not stated where your employer was based, whether it's a company or proprietor, whether it's an office or factory, the number of people employed, your salary level, etc. We do not know what was in your appointment letter or in the termination letter.
So how do you expect an answer to your above question other than blatant guesswork?
From India, Mumbai
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If the employer is a company or a LLP, the owner is not required to sell his personal property to pay salary of the employees. Please show me which judgement says so.
From India, Mumbai
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From India, Mumbai
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Hello Anonymous,
I am not sure from where you got the impression or idea that going legal is a quick-fix solution to situations like yours.
Many details of your situation are hazy at best or missing at worst.
Like Saswata Banerjee mentioned, with so many grey areas or missing information in your posting, how do you expect anyone to give realistic and actionable suggestions?
Regarding your query: "What are the chances of winning the case if I present this in court as it's already 2 weeks past", even assuming for a moment that the members in this forum have all the details of your situation, do you think anyone can give a 100% assurance that you will get your money by going legal?
Even if you hire the best legal minds in the country (which would cost a lot), there would still be at least a 1% chance that the court decision may go against you - are you ready for that? This is in addition to the time, effort, and money that you would need to spend.
As it is, it seems like you are from the middle class (not that this aspect is above all others in the case). So, at the end of the day, what's your priority: to cut down your losses or to spend more to aim for something that always has some level of uncertainty in the end result?
The choice is yours.
Like Saswata Banerjee suggested, just move on in your career and life, learning from this experience.
But, as mentioned above, the choice is yours.
All the best.
Regards,
TS
From India, Hyderabad
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I am not sure from where you got the impression or idea that going legal is a quick-fix solution to situations like yours.
Many details of your situation are hazy at best or missing at worst.
Like Saswata Banerjee mentioned, with so many grey areas or missing information in your posting, how do you expect anyone to give realistic and actionable suggestions?
Regarding your query: "What are the chances of winning the case if I present this in court as it's already 2 weeks past", even assuming for a moment that the members in this forum have all the details of your situation, do you think anyone can give a 100% assurance that you will get your money by going legal?
Even if you hire the best legal minds in the country (which would cost a lot), there would still be at least a 1% chance that the court decision may go against you - are you ready for that? This is in addition to the time, effort, and money that you would need to spend.
As it is, it seems like you are from the middle class (not that this aspect is above all others in the case). So, at the end of the day, what's your priority: to cut down your losses or to spend more to aim for something that always has some level of uncertainty in the end result?
The choice is yours.
Like Saswata Banerjee suggested, just move on in your career and life, learning from this experience.
But, as mentioned above, the choice is yours.
All the best.
Regards,
TS
From India, Hyderabad
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