INTRODUCTION
It is becoming quite frequent in India for employers to retract salary to employees, especially at the time of lay off. What do employers think that employees have no options or the resources to pursue a case against an employer?
Practically, an employee can take several actions so that employers face issues and real trouble. Nonetheless, the knowledge and awareness regarding the same rights are not available in the public domain and a lawyer’s advice comes costly.
An employee can follow the numbers of legal processes to recover salary or wages. The first and foremost step recommended to the employee is sending a good notice from a reliable lawyer who has a track record of doing such matters.
India has a complete individual law in terms of payment of salary called Payment of Wages Act; with the terms and conditions that it does not apply to all levels of employees. It usually applies to low-wage blue caller workers. Section 41 of the Act talks about the same.
Monthly Salary Distribution Requirements:
A person working with an establishment and earning a wage not more than Rs. 1000, then in this scenario, the wage person shall be paid before the expiry of the seventh day.
A person earning the wages of more than one thousand shall be paid before the expiry of the tenth day.
If the employee gets terminated then the wages earned by him shall be paid to him before the expiry of the second working day counted from the day his employment gets terminated.
LEGAL APPROACH
If your employer is not paying your salary, you can get these remedies.
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A) Approach Labour Commissioner:
If an employer denies paying your salary, you can approach the labour commissioner. Labour Commissioner provides service to reconcile this matter and if no solution provided by labour commissioner, the matter will be transfer to the court whereby a case will continue against your employer.
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B) Industrial Dispute Act:
An employee can file a suit u/S 33(c) of the Act, 1947 for the recovery of due money.
It is permissible that any other person on the behalf of the employee can also claim for the dues. For example, in case of the death of the employee, the authorized person or heirs can pass on an application to the labour court for recovery of the dues.
NOTE: If you are a manager or executive level employee, you can opt for the civil suit. Suit against the company under the Civil Procedure Code under Order 7, talks about the summary suits.
Employer Fraud Punishment:
Section 447 of the Companies Act, 2013 set down punishment for fraud.
A person shall be liable for imprisonment not less than 6 months which may extend up to 10 years.
Other measures can also take up under Section 447 of the Act.
An employee can opt for a criminal case against the company under the Indian Penal Code.
STEPS TAKEN
Step 1: Employees are strongly advised to send a legal notice, summarizing all the actions that they may take by the concerned lawyer. But before concerning a lawyer before going to a lawyer, ensure that they have a good track record in doing such work.
Step 2: If this does not work, an employee can approach the police with a title of cheating, where there is enough evidence for such fraud, which is critical. At this step, it is crucial to prepare a detailed note to give to the police. A lawyer appointed by yourself should assist you in this. The court rejects the majority of such complaints because they do not hold drafting skills and lack prima facie evidence. This is where a good lawyer can make a lot of difference.
Step 3: Where the criminal case is not an option or does not end with favorable results, it is recommended for the employee to opt for a summary suit or labour court, as the case may be. In most matters, we can analyze that not more than 10% of such disputes need to go to this stage. Challenge is that lawyers are more comfortable and earns more money at this stage. So if they don’t have your interest in mind they might hurry to this stage.
What is Retrenchment?
The term “Retrenchment” has been defined under Section 2(oo) of the ID Act to include termination by the employer for any reason whatsoever, other than a punishment given in disciplinary proceedings.
The provision also mentioned what Retrenchment does not include:
Voluntary retirement;
Retirement on reaching the age of superannuation;
Termination of service of a workman results in non-renewal of the contract;
Due to continuous ill-health
A mere perusal of the aforesaid provision shows that the employer is provided with this wide discretion for terminating an employee. It states that the employer can terminate for any reason whatsoever.
Conditions to be fulfilled for retrenchment
Section 25F of the ID Act is a very essential provision for the law relating to retrenchment.
If the employer is following the conditions or requirements given in this provision, then the retrenchment of the employee will be illegal and invalid.
According to this provision, an employer cannot retrench a workman employed in any industry. Especially, who has been in continuous service for not less than one year unless-
The workman gave one month’s notice in writing indicating the reasons for retrenchment. The period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
The workman should pay with the compensation at the time of retrenchment;
The notice must be served to the appropriate Government
Hence, the employee can challenge if the above-mentioned conditions have not fulfilled. The employee can challenge against the same.
Section 25FF of the Act talks about the Compensation to workmen in case of transfer of undertakings.
The workmen are entitled to notice and compensation, where the ownership of the management of an undertaking is transferred from the old employer to a new employer.
However, the workman shall have been in continuous service for a minimum of one year in that undertaking immediately before such transfer.
CONCLUSION
In the above-mentioned guidance, notice plays a crucial role. On that note, if the employer understands the consequences on the very first stage then there will be no need to proceed further. Because here the psychological tool for a reliable lawyer works for the employee.
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