Non-payment of salary to the employees by their employers is very common. The employers are often under the misconception that the employees are either not aware of their rights or would hesitate to follow the complex procedure of filing a complaint against them. However, there are various laws that safeguard the rights of employees and to claim the unpaid salary as well as the interest in it.
Legal Notice sent by the employee on account of unpaid dues
The Payment of Wages Act, 1936, ensures that employees get their salaries on time. However, if the employer denies or delays the payment of salary or wages to the employee or worker, then the employee or worker is entitled to interest on the amount to be paid for delay in providing the wages or salary. The employee then has the option of sending a legal notice to the employer for the payment of salary. A certain list of documents is required while sending a legal notice to the employer such as-:
- Proof of unpaid salary through bank statements, etc.
- Appointment letter
- Details of your salary, benefits, pay, and perks
- Copy of Employment Contract
Upon receiving the Legal Notice from his employee, the employer must pay the unpaid dues with interest to the employee. However, if the employer refuses or fails to do so, then further legal remedies such as Insolvency and Bankruptcy Mode, Arbitration and Mediation, and lawsuit can be opted by the employee for the recovery of dues.
Insolvency and Bankruptcy Code, 2016
In this method, the employee or a group of employees file a petition for the payment of unpaid salary under the Insolvency and Bankruptcy Code, 2016. After filing a petition, a resolution professional is appointed, and a committee of creditors is set up. If a suitable conclusion is not arrived at for the payment of salary, then the company is liquidated.
In order to file a complaint under IBC, the employee or employees must send a demand notice to the employer seeking the payment of unpaid dues. If the employer does not pay within the stipulated time, then the insolvency resolution process will be initiated against the company. Generally, such a process can be initiated by filing an application with the adjudicating authority, which is the National Company Law Tribunal or NCLT.
Arbitration and Mediation
Arbitration is a costly method and can be used only if it is one of the clauses in the employment contract. Also, the decision arrived at in Arbitration is time-consuming in the matter of the application of the decision. Mediation is a process whereby a neutral third party comes to a hears the dispute of both the parties and helps to come to a decision in a peaceful manner. However, in this matter, Mediation can be useful only if the employer is willing to abide by the decision of the mediator.
Filing of Lawsuit
The employee can file two types of suits under the law for the non-payment of salary-:
Civil Suit: an employee can file a civil suit under the Civil Procedure Code. Typically, the employee is required to send a legal notice demanding payment of dues to the employer. If the employer refuses or fails to do so the employee can initiate legal proceedings against the company. As per order 37 of the Civil Procedure Code, you may file a summary suit before the District Court. After filing a suit, summon is issued, and the employer has a period of 10 days to appear before the court. In case the employer fails to appear, then the decision is made in favour of the employee. The employee also must have some proof of employment and must mandatorily file a suit within three years from the date when the salary was due to him.
Criminal Suit: It is the liability of the employer to pay the salary to the employee on time. However, if he denies, refuses, or fails to do so, then the employee can file a criminal suit for cheating and breach of trust under Section 420 of the Indian Penal Code.
The employer has paid the salary through cheque, which has bounced and thereafter refuses, or denies making a fresh payment, then the employee can file a suit under Negotiable Instruments Act, 1881.
It is pertinent that you know your rights as an employee. However, please note that if you work as a consultant or a professional on an independent basis, you may not be able to avail of the routes mentioned above, except filing a suit for breach of contract. You should approach a lawyer to understand and evaluate your options better.
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