Salary withheld

Sir,
I am a Senior Software Professional and was employed by a Malaysian firm (also having operations in India) on a contractual assignment for six months.

The company that employed me deputed me to company A which was actually implementing a software solution for company B.I was in direct contact with Company B for all my work. Company A is an Indian software multinational and Company B is an Australian Company with offices in Malaysia and India.

The contract that happened in Feb 2014 required that I join employment in Malaysia, however I could not travel to Malaysia for work as around the same time my wife was expecting. It was mutually agreed(On email) that I could continue to work remotely from India(online) using connected computer systems(Software work can be performed using corporate VPN over internet from anywhere in the world). I never traveled to Malaysia. Later in June 2014 the employment contract was called off by the employer stating that it was not possible to continue my working remotely and its a breach of employment contract and I was required me to be onsite in Malaysia. I had no issues with that and agreed to it and served the proper notice period as required after the contract was called off. Now my last salary has been with held and not paid by my employer stating that they have not received payments from Company A. I have prior payslips, copy of employment contract and approved and signed time sheet until my last day of work(that show my attendance at work). Also, one of the clause on the contract is that it is governed by Malaysian Laws

I was in contact with the employer through a manager there(also my only point of contact) over phone and through emails. The manager has not provided me the details of his superiors even on my insistence so that I could escalate the matter to them about my non payment of salary.

What are the legal resources available for me against the employer in India to get the withheld salary back.Can I also pursue action against company A as my employer has stated that they have not received payments from Company A and therefore they cannot pay me.

The employer has also withheld monthly tax deductions(TDS) from my monthly pay as per Malysian Laws and has not provided me with any legal supporting documents for the tax that they have withheld.I believe they might have siphoned this amount away from the tax authorities too.

Asked 10 years ago in Labour

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5 Answers

1. payment of your salary is not depended on the receipt of payment by your employer from their client where you are working for your client,

2. You can not drag the client of your employer in your browl with your employer,

3. You are legally entitled to get your with held salary and also the TDS certificate for deducting Income tax for depositing with malyasian authority,

4. Here, the pertinent question is are you governed by the law of India or Malayasia since you are working from India online and has not visited Malayasia for doing job with the said co0mpany,

5. If you are considered as working from India, then the TDS also should have been deposited with Indian I.Tax department,

6. I think, because of these problems only your Company has terminated your contract,

7. File a complaint case before your local labour commissioner and lodge a complaint before the local i.T department,

8. If the Malayasian Company has a local office, make them a party too,

9. You can also file a Money suit against the said Company demanding the with held salary, damage and cost.

Krishna Kishore Ganguly

Advocate, Kolkata

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Talk to Advocate Krishna Kishore Ganguly

You are an Indian selected and appointed by Malaysian company but worked from India and never visited Malaysia to work.so you were working from India hence governed by Indian laws and TDS ought to have been deposited with tax authority in India. Secondly, an employer can not take a plea that he has since not received payment from his clients/customers so he can not pay salary to his employees.You should serve a legal notice to the employer/company and also to Malaysian company if they have local office in India and if needful is not done despite legal notice then file suit for recovery of amount due with interest and also ask for all the details of deductions including TDS certificates.

S.P. Srivastava

Advocate, New Delhi

703 Answers

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Talk to Advocate S.P. Srivastava

You can not file a suit for recovery of your salary in India as Indian Courts would not have territorial jurisdiction. Simply, the employer having operations in India without any regular office would not confer jurisdiction on Indian Courts.

Best course for you would be to complain to Malaysian authorities to look into the matter both in respect of your wages as well as tax deductions certificates.

H. S. Thukral

Advocate, New Delhi

620 Answers

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Talk to Advocate H. S. Thukral

Hello,

The company can not legally withhold your salary for reason stated in your query as your employer is directly responsible for payment of salary.

Right now your legal recourse o is to send a legal notice to your employer demanding payment of arrears and TDS certificate from your salary.

It is unlikely as far as I can see that the TDS could be as per Malaysian laws as you are employed in India.And if that be the case there would certainly have been mention about the same in your appointment details.

Send a notice now.You may have to approach the labour court in India if need be.

S J Mathew

Advocate, Mumbai

3596 Answers

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Can such cases be tried under criminal provisions of the law like fraud, duping, mistrust etc besides civil and labor courts. If so what are such provisions and how to pursue these, should the legal notice include note of such criminal action that can be pursued.

A little more investigation about the employer has turned out that they are bunch of few people from India residing abroad. I am not sure how there Indian operations are but they definitely are registered Company in India too(as per information publicly available on Ministry of Company Affairs website). Recently they have taken there website and other contact information down. Can I initiate a police action that can could then be taken up through diplomatic channels(Indian Mission in Malaysia) to the Malaysia Police. In a manner I am looking at some recourse that could be initiated in India but that could be enforced by Malaysian authorities, some sort of a inter governmental arrangement or an instruction by our courts.

Asked 10 years ago

1. If you find that they have/had office registered in india, then most of your jurisdictional problem is over,

2. You can lodge a police complaint of cheating, fraud etc. against the company and also making those individuals as parties,

3. You can also file civil suit and complaint case before the labour commissioner in this regard.

Krishna Kishore Ganguly

Advocate, Kolkata

27498 Answers

726 Consultations

Talk to Advocate Krishna Kishore Ganguly

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Salary withheld

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