What can you do if your employer does not pay your salary or infinitely delays it?

It is quite common in India for employers to deny salary to employees, especially at the time of firing them. They think that employee’s have no options or the resources to pursue a case against an employer. In reality, there are several things an employee can do that can land an employer in real trouble. However, the knowledge regarding the same is not available in public domain and lawyer’s advice come costly. At ClikLawyer.com, we have been getting many such cases recently. We decided to share our best strategies for benefit of all Indians.

There are several legal process that can be followed by an employee to recover salary or wages. The first step that we recommend is sending a good notice from a credible lawyer who has a track record of doing such matters. However, before we tell you more about that, let us get you introduced to some basic concepts in Indian labour laws that deal with the issues of non-payment of wages or salary.

India has an entire law on payment of salary called Payment of Wages Act, though it does not apply to all levels of employees. It usually applies to low-wage blue caller workers.

Effective September 11, 2012, the wage ceiling under the Payment of Wages Act, 1936 was increased to an average wage ceiling of INR 18,000 per month pursuant to a notification by the Indian Government. If you are not covered under this act, other remedies are still available.

Let’s see what the Payment of Wages Act has to say in this matter.

Section 4 of the payment of wages Act states –

Fixation of wage period every person responsible for the payment of wages under Section 3 shall fix periods in respect of which such wages shall be payable. No wage period shall exceed one month.

Reference 2 – Section 4 payment of wages Act

Monthly Salary Distribution Requirements:

A person is working in an establishment with a wage not more than one thousand, the wage to the particular person shall be paid before the expiry of the seventh day.A person with the wage of more than one thousand shall be paid before the expiry of the tenth day.If the employee is terminated by the employer the wages earned by him shall be paid before the expiry of the second working day from the day his employment is terminated.

What steps can be taken by employee:

If your employer is not paying your salary, you can get these remedies.

A) Approach Labour Commissioner:

If an employer doesn’t pay up your salary, you can approach the labour commissioner. They will help you to reconcile this matter and if no solution is reached labour commissioner will hand over this matter to the court whereby a case against your employer may be pursued.

B) Industrial Dispute Act:

An employee can file a suit under Section 33(c) of Industrial Dispute Act, 1947 recovery of money due from an employer.When the salary is due from the employer, the employee himself or any other person authorized by him in writing on his behalf can claim recover money.In case of the employee death, the authorized person or heirs make an application to the labour court for recovery of money due.The court will further issue a certificate on being satisfied that the salary is due and the collector shall proceed to recover the same.If any question arises as to the amount of money due or as to the amount at which such benefit should be computed, it would be computed according to rules under this Act.

Labour Court Time Line:

Cases have to be decided by such labour court within period not exceeding Three Monthsprovided that where the presiding officer of a labour court considers it necessary or expedient so to do, he may for reasons to be recorded in writing, extend such period by such further period as may he think fit.

Reference 3 – Section 33(c)(2) Industrial Dispute Act, 1947

What about executives, managers and those who earn above INR 18,000 a month?

If you are manager or executive level employee, you can file a case against the company in the civil court under order 37 of Court of civil procedure. This is faster than the usual slow procedure in civil courts, called a summary suit. It is quite effective, but should not be pursued as a first resort. There are easier things at your disposal as well. Out of 100 cases, maybe 5-7 requires such effort. However, many lawyers are quick to jump to this. Before opting for this, ask your lawyer to exhaust other means.

What if company is not paying with a fraudulent or dishonest intent?

If an employee is affected by the company’s fraudulent activities, then he may seek some strong actions.

The following remedies would be available in such cases:

Employer Fraud Punishment:

Section 447 of Companies Act, 2013 lays down punishment for fraud.Person shall be liable for imprisonment not less than 6 months which may extend to 10 years.Fine not less than amount involved in fraud which may extend upto three times of the fraud amount.Subsequent measures can be taken under Section 447 of the Act.An employee can also file a criminal case against the company under Indian Penal Code.

First Step To recover unpaid salary

Step 1: We strongly recommend sending a legal notice enumerating all the actions that you may take from a credible lawyer. Before going to a lawyer, ensure that they have some track record in doing such work. From ClikLawyer, you can file a notice like this for INR 2500 only. You should not pay above INR 3000 in any case.

Step 2: If this does not work, approaching police for a cheating case, where there is enough evidence for such fraud, is critical. At this stage, it is important to prepare a detailed case file to give to police, and your lawyer should assist you in this. A majority of such complaints are not accepted due to weak drafting and lack of prima facie evidence. This is where a good lawyer can make a lot of difference. ClikLawyer charges INR 2500 to handle a police complaint matter at present.

Step 3: Where criminal case is not an option, or does not produce results, we recommend going for a summary suit or labour court, as the case may be. In our experience of handling such matters in large numbers, we can say that not more than 10% of such disputes need to go to this stage if the matter was handled well in earlier stages. 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.

Important things to keep in mind when you are trying to recover your unpaid salary

The notice is a very important psychological tool, and getting the salary in less time is a psychological game. If the employer understands the consequences quickly, he will settle before you need to go to court, which keeps costs low as well. However, only a few lawyers do this kind of work because it may not be very profitable for them.

There are many cases in India where employer does not pay salary for a month or couple of months and easily get away with the same. A good example is of Kingfisher Airlines. When it shut down its operations, many workers were not paid their dues.

 

Shared by Adv VINOD SAMPAT 9987622225

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What is a Legal Notice

Legal notice is a formal communication to a person or entity informing him that you intend to undertake legal proceedings against him / her. It is a step taken before filing a suit, and is meant to warn the other party that legal action may be taken against him/her, if he/she fails to comply with some specified condition.

In what cases can we send a Legal Notice

Most common cases where I have engaged with my clients in sending legal notices is in case of Property disputes, Dishonor of Cheque, Family disputes pertaining to asset distributions, Husband / Wife conflicts as a warning before taking legal action against the spouse, Consumer complaints and cases where salary / wage commitments are not met.

How to send a Legal notice / what is the process for sending a Legal Notice

Many times we do not know the legal importance and meaning of the usual words which we use in a casual manner, engaging a qualified lawyer helps in drafting the legal-notice. Extreme care is taken about the choice of words and language used and measures of caution about not admitting any fact which you may later be denied in a court of law. Once the legal notice is dispatched than you cannot make any changes in that and later on also you cannot make any contradictory statement from what you have already stated in a legal notice. The Notice is sent on a plain paper or on the letterhead of the lawyer.

Step 1: Connect with a lawyer who carries good in drafting skills, the notice can be sent in any Indian Language, usually English is been the preferred choice of my clients. The notice should be addressed to the person against whom you have the grievances.

Step 2: In your consulting session with the lawyer, please explain the information in detail with names of parties involved; address, dates when commitments were made and not honoured, challenges and issues faced, any previous attempts of dialogue etc…

Especially in case of husband-wife dispute, in my personal experience I have observed a legal notice often brings the spouse for negotiation and in many instances disputes are resolved via counselling or mutual consent

Step 3: The lawyer carefully studies your information shared, makes relevant and required notes in the conversation with you and seeks any additional information if required.

Step 4: The lawyer then drafts the notice in a legal language clearly mentioning the reason for sending the notice, all previous communications regarding the cause of notice and offer the addressee a reasonable time say 15 days or 30 days or 60 days to settle the matter by negotiating and by performing the desired action.

Depending on the grievance usually the lawyers on behalf of the client sending the notice stress for an action to be performed in the stipulated period of time to either fulfils the demand or seek a reply.

Step 5: The notice is duly signed by both the client and the lawyer and is either sent via Registered Post or Courier and ensure the acknowledgement is retained. Usually a copy of the notice is retained by the lawyer.

Step 6: The expectation is after the notice is received by the other party; he/she will reply back, but as a standard best practice the lawyer in some time calls up the other party. I ethically believe it’s a good practice to follow and especially in cases of husband-wife conflicts usually I call up the person to whom notice is sent requesting to come up for counselling or discussion and try resolve matters out of court.

What should you do after receiving the Legal Notice

In case you are not the sender but have received a legal notice the steps to be followed are as follows:

Step 1: Unlike a traditional advice, not always after receiving the legal notice you need to consult a lawyer. You can opt to call up the party in concern who has sent you the notice to amicably settle down the matter and resolve the same in the best interest of time and money.

Step 2: If you believe the notice sent or the information in the notice is not accurate or need to contest and need legal help, approach a qualified lawyer who can take necessary actions. The first step after reaching the lawyer is to share your side of the story and the facts with date and time when the events occurred so that the lawyer will review the notice you have received and will draft a reply based on the facts collected from you.

Step 3: In this case too, the lawyer will send the reply to the notice via courier or registered post. A copy of the notice sent and received both are retained in the lawyer office along with the acknowledgement receipts or all communications. Your lawyer will also in sometimes communicate with the lawyer of the other party to enable a smooth flow and try resolving matters at your end.

The exchange of legal notices usually results in the commencement of litigation between the parties as the party sending the notice may take recourse to civil/criminal law remedies.

Points to remember

· The party being served with the lawsuit / notice is called “the respondent” or “defendant”. A legal notice may be responded to only if it has merit and needs to be replied to.

· One of the simplest reasons to understand why legal notices are used deals with fairness. It is possible that the notice sent by the plaintiff may not reach the respondent, this can be due to change in address location or information about the respondent is not available to the plaintiff, so far I have not come across such a situation, there are definitely certain legal steps we can take in these situations.

· If the notice has substance and the facts stated therein, if litigated against in the court would go against you, then do consult a qualified and reputed lawyer who practices in the issues related to the notice being sent and discuss with him / her. For ex. If the notice is with respect to property disputes visit a civil lawyer, or if family disputes visit a lawyer who practices family law and so on…

· Leave it to your lawyer whether or not to reply the notice. Your initial consultation with the lawyer will help you understand if its required to reply or not or what are the right steps to resolve the issue at hand.

· In case the notice is converted into a suit it’s mandatory for you to respond. Ensure all your facts are in place so that the next steps by your lawyer are advised in due course of action.

Legal notices are a vital principal of the courts providing fairness and due process by giving all parties affected by the lawsuit or legal proceeding notice of the legal procedure. No party can operate in secret and all court actions must be apparent to all parties to the case.

In my experiences especially in matters of cheque defaults and family disputes, husband wife conflicts I have resolved matters before reaching the courts through counselling and arbitration / mediation and mutual understanding, legal notice plays a very vital role here and it all depends on how you draft one, the focus of your lawyer should be to resolve the issue at hand and not to create or escalate tensions.

 

Shared by Adv. Vinod Sampat

 


The Lies and the Fake World we live in


NO CHOICE, IMPLEMENT NOISE RULES

HC TO STATE: NO CHOICE, IMPLEMENT NOISE RULES FOR GANPATI FESTIVAL

Bench was told that state had planned to approach Centre, seeking relaxation of norms.
The state government, which was planning to relax noise pollution rules for Ganeshotsav and Navratri festivals this year, will instead have to properly implement the same, the Bombay High Court made it clear on Thursday.

A division bench of Justice AS Oka and Justice VV Kankanwadi, while hearing a bunch of public interest litigations on the issue, was informed about the state government’s decision to approach the Centre, seeking relaxation in loudspeaker rules for the forthcoming festivals.

Pouring cold water on the administration’s plans, the High Court observed that the state government had no choice but to follow its directions to not allow loudspeakers in silence zones on any day of the year, as it has failed in its challenge before the Supreme Court.

“Let us remind all the politicians and the government that the Supreme Court has already dismissed the petition that challenged this court’s orders. The SC has upheld this court’s judgment. Now the Apex Court is monitoring this, so you (government) have no other option but to implement this court’s orders or else you are aware about the implications,” the bench observed after hearing the submissions.

The HC order was issued last year.

The court was told that Chief Minister Devendra Fadnavis had met representatives of certain Ganpati mandals and reportedly assured them of relaxations in use of loudspeakers. The mandals are said to have sought the relaxation as 80 per cent of them fall in silence zones.

The court was further informed that despite its orders, the state government has not created any toll-free and WhatsApp numbers for registration of noise pollution-related complaints.

The bench directed the government to ensure that all preparations for effective implementation of the Noise Pollution Rules, 2000, are in place before the festive season. It further directed the state to create the toll-free and WhatsApp numbers.

The petitioners also informed the HC that state has failed to check vehicular noise pollution. On a query from the court, Advocate General Ashutosh Kumbhakoni submitted that the Regional Transport Officers as well as Traffic Police would conduct workshops to sensitise the drivers of taxis, auto-rickshaws as well as Ola and Uber cabs against unnecessary honking.

http://mumbaimirror.indiatimes.com/mumbai/other/hc-to-state-no-choice-implement-noise-rules-for-ganpati-festival/articleshow/59586659.cms

ASCI bans 242 ads, including Snapdeal, Amazon, Idea, ToI, ET Now, Zee, Airtel, Coca-Cola, Dhara, Fair & Lovely, Ponds Age Miracle in February 2017

The Consumer Complaints Council (CCC) of the Advertising Standards Council of India (ASCI) has banned as many as 242 advertisements out of 305 complaints it received across segments during February 2017. Out of 242 advertisements against which complaints were upheld, 165 belonged to the Healthcare category, 31 to the Education category, followed by nine in Personal Care Category, 19 in the Food & Beverages category, and 18 advertisements from other categories, the self-regulatory industry body said in a statement.
The banned ads are from prominent companies like Amazon.com (Micromax 32T7260 HDI LED TV), Jasper Infotech Pvt Ltd (Snapdeal), Idea Cellular Ltd (Idea 4G), Bennett Coleman & Co Ltd (Times of India), Times Network (ET Now), Zee News Ltd (Zee Business), Bharti Airtel Ltd (Airtel 4G Data), Dish TV, Coca-Cola, BSNL Corporate among others, they range from FMCGs to autos, personal accessories to alcohol, and education to media.
Click Here for more details and the full list of ads which are banned

Search for your polling booth for the MCGM elections – Operation Black Dot

android-icon-144x144Operation Black Dot is an apolitical initiative from social quotient to make voting easy, engaging and fun. OBD is a movement to bring about a change in the mindset of youth by using a variety of platforms and engagement models to achieve the objectives of increased voter participation in municipal elections and greater youth leadership in urban local governance. Essentially, we want to send a wake-up call to young India: the kind which is wired into Facebook every minute, binge watches House of Cards, parties every saturday, studies hard for entrance exams – but does not know who their corporator is!

 

Click Here –  https://operationblackdot.in/voter-list-search/#
And get the booth address where u will vote
This is really a good link. U can search with ur name


On the Digital Highway without a Seat Belt

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Prime minister (PM) Narendra Modi’s mega campaign to go cashless may, in the long run, lead to transformation like his much-needed Swachh Bharat initiative. We are a cash-based economy; over 68% of transactions happen in cash and the push to get, at least, urban, educated Indians to switch to cashless payments is necessary and long overdue. Starting with his radio talk (Maan ki Baat), the PM’s slogan of ‘My Mobile, My Wallet, My Bank’ has been amplified by leading bankers, e-payment companies, Union ministers, NITI Aayog officials and high-profile bureaucrats. But people won’t change just by being shoved in a particular direction. Moreover, in the short run, the pain in accessing one’s own money is very real. The government needs to work harder to make the switchover easier, by providing adequate infrastructure (telecom coverage, Internet connectivity), safety and ease of transactions and proper grievance redress. Unfortunately, the effort to push e-payments seems driven by the need to hastily correct the massive failure of currency management after demonetisation, rather than a genuine desire to bring about a paradigm shift. Let’s look at a few decisions that are urgently needed to ensure that the switch to cashless transactions is both, safe and permanent.
1. Beneficiaries Must Pay: The first step is to encourage and incentivise e-payments by scrapping ‘convenience’ charges and transaction charges. So far, it has been a sellers’ market. So ticket booking agents (makemytrip, cleartrip, etc, or Bookmyshow) and even principals (Jet Airways) conveniently turned the logic on its head and decided that we, the consumers, must pay for the ‘convenience’ of getting tickets online. Airlines used to offer hefty commissions to travel agents who did the hard work of selecting the best route and the lowest fare option; the customer did not pay. Today, there are no travel agents; the consumer does all the hard work of searching and selecting; and also pays for the alleged convenience. We need to ensure that beneficiary companies, at least, share the convenience. But what about movie theatres and airlines which are able to save on ticketing and box-office costs? This is the best time to do it because they need our business at a time when discretionary spending has dried up substantially.
2. Regulation of E-wallet Companies: Information technology experts will tell you that most apps and e-wallets collect a lot of sensitive customer data by seeking omnibus permissions from not-so-savvy users. According to a report by medianama.com, leading payment apps get access to your Internet history, bookmarks, and even really sensitive data such as IMEI number, saved Wi-Fi network info and the MacID. They record audio info, modify contacts and even use call logs to make calls. Many e-wallets will save  credit/debit card details used to transfer money to the wallet without your permission.
This increases the security risks for users, without their knowledge. If the data is hacked, we, as individuals, are in no position to track the source of the leak and we have no access to easy grievance redress either. We need to have clear rules on what information can be collated by apps and their liability spelt out, in case there is a large-scale data breach or even if an individual consumer has a complaint. Will every minister of the NDA government, who is dutifully promoting e-wallets, take up the issue of regulation as well?
3. Grievance Redress: This is an issue that we have been agitating for several years through Moneylife Foundation, our not-for-profit entity involved in advocacy and financial literacy. At a social gathering, recently, a leading industrialist and a retired police chief were narrating interesting stories about how their domestic helpers and cooks had adapted to technology, using it to transfer money to their village in Bihar and Odisha through ATMs.
While this is, indeed, very heartening, it is also a fact that ATM PINs are easily shared with the family because of ignorance. In one case, a domestic helper’s account, which had her precious savings of over Rs70,000, was hacked. The hacker, pretending to be a banker, claimed that the account was being tested to ensure that a link to her mobile phone was working effectively and she should read out the number received in an ATM. The unsuspecting woman ended up giving her OTP (one-time password) six times, until the bank itself noticed something amiss and blocked her account. A well-known consumer activist, who is helping the lady recover her money, related this story to me; how many are so lucky?
As Dr KC Chakrabarty, former deputy governor of the Reserve Bank of India (RBI), told me in a recent interview, “You may push a person to do digital transaction; but once a person has lost money at an ATM or in a digital transaction, he will stay away for 10 years. All over the world, unless the bank can prove that the customer is at fault, his money should first be credited to his account. That is a global rule. This is not yet implemented in India.” The reason for not notifying consumer protection regulations is rather perplexing, especially when RBI deputy governor,
SS Mundra has publicly acknowledged that the increase in online transactions has led to a manifold surge in customer complaints. Addressing a public meeting on 23rd May, he had said that these complaints relate to electronic transactions, unauthorised fund transfers, fraudulent ATM withdrawals using duplicate cards, phishing, vishing, etc. And yet, on 31st August, RBI only issued a draft regulation proposing to limit customer liability instead of notifying formal rules. These regulations propose to shift the onus of proving wrongdoing or carelessness on the part of the customer to the bank. They will also ensure that the money lost is immediately credited back to customer accounts pending investigation. Isn’t it strange that RBI has not been asked to notify these regulations even while a nationwide campaign to go cashless has been launched from the highest office in the land? RBI must also be asked to notify its much-touted consumer charter and take responsibility for its implementation. The charter must prescribe clear penalties for banks’ lapses and amend the banking ombudsman regulations to empower it to initiate stringent action. Instead, an unworkable consumer charter has been put out in the public domain and RBI seems to have no intention of holding banks strictly accountable for treating customers fairly.
4. Financial Literacy: The buck for spreading financial literacy also stops at RBI’s doors. The central bank, as is its style, works at an excruciatingly slow pace on most issues;  it is probably the slowest on consumer protection. Two years ago, RBI took charge of over Rs3,500 crore of unclaimed cash deposits that were lying with banks and set up the Depositor Education and Awareness Fund (DEAF). This money could have been put to excellent use today to spread financial literacy using modern tools to spread the message.
Two years later, DEAF has little to show. It took a year to grant accreditation to a few NGOs and another year to sanction small sums to be spent on workshops to a few of them. Worse, DEAF will simply not engage with people in the field. Another effort to reach out to rural consumers under the aegis of RBI and with support from banks is similarly chugging at a snail’s speed. This is not the pace at which the PM operates; but then, why doesn’t someone push RBI to act, or take away these responsibilities and allow it to remain India’s monetary authority? At a time when people are going through enormous hardship to access their own hard-earned money, being pushed into driving along the digital highway without a safety belt will be even more insensitive.
by Sucheta Dalal
http://www.moneylife.in/article/on-the-digital-highway-without-a-seat-belt/49035.html