Dear all !!!! The penal action regarding delay in payment of wages is covered under the Payment of Wages Act 1936. Section 3 thereof states that the employer shall be responsible for payment of wages to the persons employed by him. The Act further specifies that in case of factory it shall be the Factory Manager as per Factories Act 1948, in case of industrial or other establishment it shall be the person responsible for supervision and control of the establishment (as in the case of Airlines) . The Inspector under the PW Act has the authority to file complaint against the person whom he feels is responsible for payment of wages. Hence the HR Manager who exercises supervision and control can be made liable for default.
Regards
KK
From India, Bhopal
199Regards
KK
From India, Bhopal
The subject is the prosecution of HR for certain lapses as cited in the topic for discussion such as dishonour of cheques or late payment of salaries. it means it hints at some action against an erring individual under some law. The topic thus has legal import and needs tobe answered from legal perspective but not from moral or ethical perspectives. When an act attracts the penal provisions of any particular Act, it is a settled position in law that the penal provisions of the said Act need to be interpreted strictly but not liberally or broadly so as to caste a wider net to involve every one. The labour laws normally envisage an action agaisnt an employer for breach of provisions of an Act. The relevant labour law which is breached defines as to who is an employer.
Usually,an employer is defined under labour laws as some one who wields the ultimate control over the affairs of the establishment. For example, for breach of the provisions of the Factories Act, the occupier is the one who is under the ultimate control of the affairs of the factory and thus for this purpose, the board may nominate one of the directors as the occuier. In such a case, action lies against the said director for any breach of the provisions of the Act but not on any individual officer.Therefore one needs to figure out who is the entity who has the ultomate control of the affairs of the comapny under the particular labour legislation.However an individual officer can be held liable only when the occupier or the employer proves that he has issued instruction for complying so and so provision but he did not obey his instruction.
The case of dishonour of cheques may attract the penal provisions both under the Negotiable Instruments Act as well as under a labour Act like the Payment of wages Act or the Minimum Wages Act. The accountabilities need to be established under the respective Acts on the above lines. I have not gone through the provisins of the Negotiable Instruments Act and therefore Iam not able to comment on fixing the liability for dishonour of cheques if the same is issued by a company. Normally the principle in such cases is that the courts in criminal proceedings lift the corporate veil to find out the person who is respnsible for the said cheque.
B.Saikumar
HR & labour Law Advsor
Mumbai
From India, Mumbai
Usually,an employer is defined under labour laws as some one who wields the ultimate control over the affairs of the establishment. For example, for breach of the provisions of the Factories Act, the occupier is the one who is under the ultimate control of the affairs of the factory and thus for this purpose, the board may nominate one of the directors as the occuier. In such a case, action lies against the said director for any breach of the provisions of the Act but not on any individual officer.Therefore one needs to figure out who is the entity who has the ultomate control of the affairs of the comapny under the particular labour legislation.However an individual officer can be held liable only when the occupier or the employer proves that he has issued instruction for complying so and so provision but he did not obey his instruction.
The case of dishonour of cheques may attract the penal provisions both under the Negotiable Instruments Act as well as under a labour Act like the Payment of wages Act or the Minimum Wages Act. The accountabilities need to be established under the respective Acts on the above lines. I have not gone through the provisins of the Negotiable Instruments Act and therefore Iam not able to comment on fixing the liability for dishonour of cheques if the same is issued by a company. Normally the principle in such cases is that the courts in criminal proceedings lift the corporate veil to find out the person who is respnsible for the said cheque.
B.Saikumar
HR & labour Law Advsor
Mumbai
From India, Mumbai
Dear Sanneev,
The answer of your quetion is "No" Kingfisher Airlines is a transport service provioder and it comes under the purview of Shops & Estblishment Act.Because all the emplyees surely getting more than 10000/- PM they could not come under the purview of the Payment of wages Act.It is then certainly to be follwo the condition of appointment letter under the purview of Indian Contract Act.For this you could not procecute HR because he is no where in the agreement contract.
You can file a complaint against the contracting authourity only.
Mangesh Wakodkar
Aurangabad
From India, Pune
The answer of your quetion is "No" Kingfisher Airlines is a transport service provioder and it comes under the purview of Shops & Estblishment Act.Because all the emplyees surely getting more than 10000/- PM they could not come under the purview of the Payment of wages Act.It is then certainly to be follwo the condition of appointment letter under the purview of Indian Contract Act.For this you could not procecute HR because he is no where in the agreement contract.
You can file a complaint against the contracting authourity only.
Mangesh Wakodkar
Aurangabad
From India, Pune
It is an emphatic "NO" HR person is also an employee of the company and any law suit is against the company and so the top man either CEO or MD is answerable to legal points.
From India, Hyderabad
From India, Hyderabad
I do agree with the compliance part and that is why I mentioned it in the beginning of the question.
I also think that this is also where most of the HR people get it wrong. In many companies, the financial health of the company is not shared with HR department. It is considered as confidential. Therefore, if the management of the company comes-up and says that they do not have sufficient funds to pay the employees. In such scenarios, there is hardly anything that the HR can do.
We do not have the money to pay; however, we need to retain the people so as to end the crisis ASAP. This is a very tricky situation. HR does not have control over finances of the company; HR does not control over the clients and their payments and HR does not sign the salary cheques. In such scenarios, how can they get prosecuted? They cannot be, even though they are the ones to sign the offer and appointment letters.
Regards,
Sanjeev
From India, Mumbai
I also think that this is also where most of the HR people get it wrong. In many companies, the financial health of the company is not shared with HR department. It is considered as confidential. Therefore, if the management of the company comes-up and says that they do not have sufficient funds to pay the employees. In such scenarios, there is hardly anything that the HR can do.
We do not have the money to pay; however, we need to retain the people so as to end the crisis ASAP. This is a very tricky situation. HR does not have control over finances of the company; HR does not control over the clients and their payments and HR does not sign the salary cheques. In such scenarios, how can they get prosecuted? They cannot be, even though they are the ones to sign the offer and appointment letters.
Regards,
Sanjeev
From India, Mumbai
All departments come together and make a company”. They all are connected to each other, and directly comes under MANAGEMENT who controls them and responsible for all good and bad things.
Agreed and we all knows that HR has nothing to do with this kind of situation and can’t even avoid it and are not responsible for Fund availability but Management (Finance directly under Management). Acceptable that finance on many terms never disclose the financial situation of a company/organization to other department but to Management who Management is directly responsible for this but truth other face of this is that no one (Management, Employee, Client or other) wants to have this crisis situation and helpless if found in it.
Concern is acceptable and solution, we all well aware what we should do or what not
[Can HR be prosecuted for non-payment or late-payment of salaries?
Can HR be prosecuted if the salary cheque gets dishonored?
In such situations, what are the remedies for HR Pros?]
So far we have discussed the main query/questions at length and I believe the answer has already been acquired.
From India, Gurgaon
Agreed and we all knows that HR has nothing to do with this kind of situation and can’t even avoid it and are not responsible for Fund availability but Management (Finance directly under Management). Acceptable that finance on many terms never disclose the financial situation of a company/organization to other department but to Management who Management is directly responsible for this but truth other face of this is that no one (Management, Employee, Client or other) wants to have this crisis situation and helpless if found in it.
Concern is acceptable and solution, we all well aware what we should do or what not
[Can HR be prosecuted for non-payment or late-payment of salaries?
Can HR be prosecuted if the salary cheque gets dishonored?
In such situations, what are the remedies for HR Pros?]
So far we have discussed the main query/questions at length and I believe the answer has already been acquired.
From India, Gurgaon
sanjeev,
let me narrate an incident...
several yrs back, i got an offer as compliance head from a big indian cos.. the hiring manager dint tell me that people dont get salaries on time n position is time...
by a stroke of luck, due to distance/ extended timings, i refused to join...
3-4 months later the same guy called me for help..
there are several times when the viability of an individual rank is questionable.. even entire divisions fail... and we have to keep mum...
purely for info, there is a body named "advertising standards council of india" which can penalise misleading ads (recruitment related too)
From India, Delhi
let me narrate an incident...
several yrs back, i got an offer as compliance head from a big indian cos.. the hiring manager dint tell me that people dont get salaries on time n position is time...
by a stroke of luck, due to distance/ extended timings, i refused to join...
3-4 months later the same guy called me for help..
there are several times when the viability of an individual rank is questionable.. even entire divisions fail... and we have to keep mum...
purely for info, there is a body named "advertising standards council of india" which can penalise misleading ads (recruitment related too)
From India, Delhi
Generally, Works Manager(Incharge of Unit ) and the Occupier are prosecuted under Payment of Wages Act for non-payment of salaries on date.
However, by discussing the matter with Unions , arranging for part payments / advances a way can be found out .
From India, Pune
However, by discussing the matter with Unions , arranging for part payments / advances a way can be found out .
From India, Pune
Hi,
Every employer appoints a person responsible for payments of pay and allowances to employees. Same is the case as per the Payment of Wages Act. Hence, in given situation the responsibility for delayed payments or dishonoured cheques will lie on the person so notified for the purpose. In case it is HR it is responsible in discharge of his official duties. Other discussions immaterial.
Regards
S.K.Johri
From India, Delhi
Every employer appoints a person responsible for payments of pay and allowances to employees. Same is the case as per the Payment of Wages Act. Hence, in given situation the responsibility for delayed payments or dishonoured cheques will lie on the person so notified for the purpose. In case it is HR it is responsible in discharge of his official duties. Other discussions immaterial.
Regards
S.K.Johri
From India, Delhi
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