Dear All,
Greetings for the day!!!
I have been employed by a company on 12th of March 2012 and as per the offer letter, both the parties are liable for a notice of 30 days (irrespective of probation).
The company, as doing badly in sales, wishes all the employees to be aligned to direct revenue generation, by changing their roles, for which I have denied and this resulted in my retrenchment, with a notice of 15 days.
As they do not have any policy, in terms of leave encashment, they deny paying me the same.
Also, they do not wish to sign the PF Withdrawal form, till the time I complete my 2 months of cooling period. As far as I know, the employer is supposed to sign the document and return back within two working days, irrespective of the cooling period (Sole responsibility lies with the Employee not the employer). Which is correct?
Also, I would like to understand the below few things:-
Am I eligible to get retrenchment bonus, if yes, for how many days?
Can I ask for leave encashment?
What sections / acts are relevant to this?
Anticipating your earlier response….
Thanks & Regards,
Dikshit T G S.
From India, Hyderabad
37Greetings for the day!!!
I have been employed by a company on 12th of March 2012 and as per the offer letter, both the parties are liable for a notice of 30 days (irrespective of probation).
The company, as doing badly in sales, wishes all the employees to be aligned to direct revenue generation, by changing their roles, for which I have denied and this resulted in my retrenchment, with a notice of 15 days.
As they do not have any policy, in terms of leave encashment, they deny paying me the same.
Also, they do not wish to sign the PF Withdrawal form, till the time I complete my 2 months of cooling period. As far as I know, the employer is supposed to sign the document and return back within two working days, irrespective of the cooling period (Sole responsibility lies with the Employee not the employer). Which is correct?
Also, I would like to understand the below few things:-
Am I eligible to get retrenchment bonus, if yes, for how many days?
Can I ask for leave encashment?
What sections / acts are relevant to this?
Anticipating your earlier response….
Thanks & Regards,
Dikshit T G S.
From India, Hyderabad
You will be eligible to get notice pay for 30 days or to work for 30 days after getting your termination notice. There is no concept of retrenchment bonus. If you are covered under industrial dispute act, you get retrenchment compensation. However that does not apply where u have not finished 1 year of working.
Leave encashment is not a dated by law
Further, you have not completed a year so you may not be eligible for leave. That would depend on company policy.
From India, Mumbai
Leave encashment is not a dated by law
Further, you have not completed a year so you may not be eligible for leave. That would depend on company policy.
From India, Mumbai
Dear Dikshit,
Let me know whether U R covered under Factories Act or Shops & Estt Act or what ?
Of course, there is some impediment in law about the 'Retrencbment' and the doctrine of 'first in last go'. Nevertheless there is nothing wrong in claiming a minimum 'separation package' in other words a 'terminal package' in case U choose to accept the retrenchment with some compensation is paid. First thing is Ur. notice pay, legally U R entitled for 30 days salary, leave encashment, exgratia in lieu of bonus and gratuity (thou' technically U have not earned or entitled as per Acts). It appears 15 days notice is bad in law and such retrenchment per se is " null and void"/illegal . It is always possible to fight it out U don't lose anything which wasn't there. Incidentally R U the only person retrenched ? Did they issued U a 'retrenchment letter ? This letter is an important evidence in your case. Pl. Collect those documents and consult a learned advocate in labour laws.
All the best pal
kumar.s.
Quote:
" W.P. (C) 7385/2007 Page 7 of 25
...18. This Court has used different expressions for describing the consequence of terminating a workman's service/employment/engagement by way of retrenchment without complying with the mandate of Section 25-F of the Act. Sometimes it has been termed as ab initio void, sometimes as illegal per se, sometimes as nullity and sometimes as non est. Leaving aside the legal semantics, we have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of Sections 25-F(a) and (b) has the effect of rendering the action of the employer as nullity and the employee is entitled to continue in employment as if his service was not terminated." ....
13. Similarly in "Jagbir Singh vs. Haryana State Agriculture Marketing Board and anr.; (2009) 15 Supreme Court Cases 327, which was a case of termination of the services of a daily wager who had worked from 01.09.1995 to 18.07.1996, the Supreme Court took note of its earlier decisions and held as follows:-
...."W.P. (C) 7385/2007 Page 15 of 25 "7. It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice."
From India, Bangalore
Let me know whether U R covered under Factories Act or Shops & Estt Act or what ?
Of course, there is some impediment in law about the 'Retrencbment' and the doctrine of 'first in last go'. Nevertheless there is nothing wrong in claiming a minimum 'separation package' in other words a 'terminal package' in case U choose to accept the retrenchment with some compensation is paid. First thing is Ur. notice pay, legally U R entitled for 30 days salary, leave encashment, exgratia in lieu of bonus and gratuity (thou' technically U have not earned or entitled as per Acts). It appears 15 days notice is bad in law and such retrenchment per se is " null and void"/illegal . It is always possible to fight it out U don't lose anything which wasn't there. Incidentally R U the only person retrenched ? Did they issued U a 'retrenchment letter ? This letter is an important evidence in your case. Pl. Collect those documents and consult a learned advocate in labour laws.
All the best pal
kumar.s.
Quote:
" W.P. (C) 7385/2007 Page 7 of 25
...18. This Court has used different expressions for describing the consequence of terminating a workman's service/employment/engagement by way of retrenchment without complying with the mandate of Section 25-F of the Act. Sometimes it has been termed as ab initio void, sometimes as illegal per se, sometimes as nullity and sometimes as non est. Leaving aside the legal semantics, we have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of Sections 25-F(a) and (b) has the effect of rendering the action of the employer as nullity and the employee is entitled to continue in employment as if his service was not terminated." ....
13. Similarly in "Jagbir Singh vs. Haryana State Agriculture Marketing Board and anr.; (2009) 15 Supreme Court Cases 327, which was a case of termination of the services of a daily wager who had worked from 01.09.1995 to 18.07.1996, the Supreme Court took note of its earlier decisions and held as follows:-
...."W.P. (C) 7385/2007 Page 15 of 25 "7. It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice."
From India, Bangalore
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