Source: https://blog.ipleaders.in/can-employee-sue-his
her-employer-penal-provisions-faced-employer/
What are the
instances under which an employee can sue his/her employer?
By Ajay Thakur
March 15, 2017
What actions can you take if your employer does not pay salaries
or fails to deposit TDS or PF?
For unpaid salary, you can approach the Labour Commissioner, who
will further hand over the matter to the court, in case Labour Commissioner is
not able to handle the matter. The employee can make an application to the
Labour Court under Section 33 (C) of The Industrial Disputes x Act,
1947. (Refer Case law: Sant Raj & Anr vs O.P. Singla & Anr on 9
April, 1985).
The definition of workman under the Industrial Disputes Act
includes a part time employee (Case law: Yashwant Singh Yadav vs State Of
Rajasthan And Ors. on 12 April, 1989)
Also, such an application should be made within one year from
when the money becomes due from the company. All other benefits such as
Provident Funds under “Employees’ Provident Funds and Miscellaneous
Provisions Act, 1952”, capable of being computed in terms of money, shall
also be included in the amount to be recovered. An employer who
contravenes, or makes default in complying with the provisions of this Act,
shall be punishable with imprisonment for a term which may extend to 3 years
but which shall not be less than 1 year and a fine of ten thousand rupees in
case of default in payment of the employees’ wages which shall not be less than
6 months and a fine of five thousand rupees, in any other case.
If you are an employee above the executive level or a manager
and above, you can also file a case against the Company in the Civil Court.
In case of fraudulent practices by the company under section 447
of Companies Act, 2013, you can always approach Registrar of Companies and
intimate them of the fraudulent activities of the company.
If for a period of one day in a year, 20 or more persons were
employed in the establishment that will be sufficient to attract the provisions
of the Act (Case Law: Ramanujam Press Represented By … vs The Regional
Provident Fund … on 19 June, 1969)
As the power of regional PF commissioner to impose damages is a
quasi-judicial function, an order under section 14(B) must be a speaking order
containing the reasons in support of it (Case law: Organo Chemical Industries
& Anr vs Union Of India & Ors on 23 July, 1979)
What will you do if your employer doesn’t pay
you gratuity?
According to section 8 of the “Payment of Gratuity Act, 1972,
in case the employer doesn’t pay the gratuity within the prescribed time to his
employee (or nominee), the aggrieved employee can apply for redressal to the
controlling authority. The controlling authority after investigation will issue
a certificate for that amount to the Collector, who shall recover the same,
together with compound interest at such rate specified by the Central
Government. In case of delayed remittances of contributions, administrative /
inspection charges by an employer, he has to pay both interest and damages for
the period of delay.
According to section 11 of the “Payment of Gratuity Act, 1972,
where the amount of gratuity has not been paid, or recovered within 6 months
from the expiry of the prescribed time, the appropriate Government shall
authorise the controlling authority to make a complaint against the employer,
whereupon the controlling authority shall, within 15 days from the date of such
authorisation, make such compliant to a magistrate having jurisdiction to try
the offence.
According to section 9 of the “Payment of Gratuity Act, 1972, if
the employer fails to pay the gratuity, he shall be punishable with
imprisonment for a term which shall not be less than 6 months but which may
extend to 2 years, unless the court trying the offence for reasons to be
recorded by it in writing, is of the opinion that lesser term of imprisonment
or imposition of a fine would meet the ends of justice.
Here “Controlling Authority” means an authority appointed by the
appropriate Government.
Dear friends,
In the light of the facts mentioned in the above article, LIC of India should be grateful to us that we haven't yet sued it! Who knows, we could be ultimately pushed to the wall in the near future and file a 'Class Action Suit' or a 'Public Interest Litigation'!
I wonder how the officials in the Managing Board of Directors of LIC of India even get sound sleep at night, after defrauding scores of resigning ex-employees of their hard-earned dues like arrears arising due to wage revision, difference in Statutory Retirement benefits like Provident Fund and Gratuity; despite the Supreme Court's verdict favoring such employees, in several cases? No prick of conscience?
Ironically, they will even take an oath of acting ethically, in their dealings as office-bearers of the Corporation, during the currently ongoing Vigilance Week! And keep including the illegal Clause in the Wage Revision Charter, every time that it is published; stipulating that such arrears are to be repudiated. By the way, this Clause was included in the 2010 and 2016 Wage Revision Charters, even after the 2007 judgement of the Supreme Court! And even approved by the Government of India!
A clear case of 'Contempt of Court'.
The Supreme court has ruled in its 2007 judgment that this offending Clause is "Ultra Vires" i.e. beyond the reach of power, of the Chairman of LIC of India.
May we persuade these officials to look up the dictionary for the equivalent of 'ethics'?
Even walk the talk? But probably that is too tall an order!
However, rest assured dear friends, the truth will ultimately prevail. We will definitely get our dues in the near future. Didn't India win her freedom after decades, nay, a century of struggle? Even if none of us is around, our descendants will reap the benefits of our crusade against LIC's injustice.
Satyameva Jayate!
Priya
