• Pending dues and experience certificate in case of termination due to misconduct

Dear All,

I was working in an IT company in Gurgaon since 8 years. Last month, I came to know that my employer has filed a police complaint against me with allegations of Data theft without my knowledge. When I enquired with management about police complaint, they took my personal laptop, forced me to open my personal emails and suspended me for 15 days (without salary) for freelance work that I was doing in my free time at home. After 15 days, when I asked them about next step then they terminated me without any experience certificate, pending dues like salary, leave encashment and gratuity. Please let me know how should I proceed in this case to enforce company for full and final settlement and how much time it may take if a legal route is taken.

Thanks a lot for your help
Asked 1 year ago in Labour from Gurgaon, Haryana

Any pending enquiry against you doesn't give them a licence to with hold your pending dues leave encashment and gratuity by your ex employer.

So, you should serve legal notice to employee asking him to clear your full and final settlement as well as other pending dues within 15 days of the receipt of the legal notice.

If he fails to adhere, you can file a suit for recovery under the Order 37 of the code of civil procedure for recovery of money.

If the amount of gratuity is also not paid by the employer within the prescribed time of 30 days to you, you have the right to file a complaint to the Controlling Authority under the Payment of Gratuity Act within the area where the employer’s establishment is situated or where you were working at the time of termination.

Feel free to call.

Siddharth Jain
Advocate, New Delhi
5326 Answers
59 Consultations

5.0 on 5.0

Issue them legal notice for arbitrary termination and compensation along with experience certificate, pending dues like salary, leave encashment and gratuity etc.

Failure to comply demand notice, approach labor court. At least 6 months will take or more but seek interim order for release of gratuity salary etc.

Yogendra Singh Rajawat
Advocate, Jaipur
16743 Answers
21 Consultations

4.6 on 5.0

before any advice can be given in this regard, you need to share your terms and conditions of the offer when you had got selected. termination after effects would be mentioned in the bye laws as well.

moreover, in the current case, send them a legal notice from a qualified lawyer seeking full and final settlement from the employer for the work done by you. for the salary etc, you would require to file a suit for recovery against them if they dont settle after the legal notice has been served

Shaveta Sanghi
Advocate, CHANDIGARH
899 Answers
98 Consultations

5.0 on 5.0

Issue legal notice to company to recover your outstanding dues

2) if company fails to pay file summary suit against company to recover your salary , leave enchantment , gratuity amount

3) disposal of suit depends upon pendency of cases in your city

Ajay Sethi
Advocate, Mumbai
72059 Answers
4334 Consultations

5.0 on 5.0

Sir in pending the enquire they cannot hold your salary dues gratuity and cannot illegally terminate you.

Issue a notice of 15 days to the employer to pay your dues and for reinstatement as the termination is illegal.

If the company fails then approach the labour court for getting all dues , praying for reinstatement.

Legal route may take some time but you shall get the relief.

Shubham Jhajharia
Advocate, Ahmedabad
22882 Answers
93 Consultations

5.0 on 5.0

You are in breach of the basic terms of your appointment IT company has taken its own course by suspending you from the job and subsequently terminating your services for your dues gratuity and experience letter you need to file a civil suit. you may also challenge your termination by the company and the false ground without giving you a warning letter. however now the company has all the record that you have breached the terms of appointment.

Vimlesh Prasad Mishra
Advocate, Lucknow
6203 Answers
19 Consultations

4.9 on 5.0

Hi, it is advisable to issue them legal demand notice through a lawyer for the release of due salary and your experience certifiCate ... If they refuse to do so we can approach labour forum and file a complaint for seeking compensation.

Hemant Chaudhary
Advocate, Gurgaon
4333 Answers
32 Consultations

4.9 on 5.0

Issue them a Legal notice to the employer stating about your illegal termination and to pay your dues with interest and Full and final settlement as the pending inquiry does not give them the power to stop your pending salary. They cannot hold your salary dues gratuity and cannot illegally terminate you.

You can file a complaint before the concerned labour commissioner or can even go for a Summary suit before the civil court.

Archit Vasudeva
Advocate, New Delhi
82 Answers

5.0 on 5.0

In this case, the employee will not receive a notice of dismissal or severance pay. However, in the latter form of termination, the employee will receive a notice of dismissal 30-90 days prior to termination of service or severance pay. This article will discuss termination without cause and pay.

Termination without cause

An employer has the right to end an employment relationship without a good reason and therefore is not required to justify the dismissal of services. However, he or she is obliged to send a notice of termination, 30-90 days prior to cessation of services and clear all dues, making the following payments:

1. Salary in lieu of notice when the notice has not been given

2. Salary for the days worked which remain unpaid

3. Encashment of unused paid leaves

4. Payment of gratuity to the employee who served for five years or more, as given in the Payment of Gratuity Act 1972

5. Payment of bonus for those employees who worked for at least 30 days in a financial year and earn up to Rs.10,000; as per the Payment of Bonus Act 1965

6. Any other dues contractually agreed under the company policy

The payment of aforementioned dues comes under the title of Severance Pay. The practice of offering severance pay less than what a workman is entitled to is not uncommon. If the employee feels that the package offered is unjust, he or she can approach the labour court regarding the same. It is advisable to hire a corporate lawyer to review the severance package before consenting to it.

Mohammed Mujeeb
Advocate, Hyderabad
13837 Answers
6 Consultations

4.5 on 5.0

Hello,

File a suit along with the application for temporary injunction. Please note that the wrongful termination of a contract can be challenged before the Court of law with damages. For your reference, you can see this case : Executive Committee of Vaish Degree College Samiti and others Vs Laxmi Narain & others (1976) 2 SCC 58. Please note that it is generally recognised that wrongful repudiation of the contract of employment by the employer effectively terminates the employment : the termination being wrongful, entitles the employee to claim damages, but the employee cannot refuse to accept the repudiation and seek to treat the contract of employment as continuing.

V Ranjan
Advocate, Delhi
62 Answers

5.0 on 5.0

You may first issue a legal notice demanding your employment rights as stipulated in the employment offer letter and protected by labor law.

Also you may demand your dues as well as to set aside the termination order and reinstatement.

Let them give a reply accepting you or else rejecting your request, you may approach high court with a writ petition demanding remedy and relief.

T Kalaiselvan
Advocate, Vellore
61997 Answers
800 Consultations

5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer