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Dear Kindly mention your name if you are asking a question. Regarding your question An employer can only file recovery suit in the court against the employee.
From India, Delhi
Dear All,

A lot many people have been asking queries about F&F procedure's after effects. Allow me to explain few common cases that happens at the time of Full and Final of an employee:
  • Ideal Case : An employee resigns on a month in advance, serves his 30 days notice period (or as mentioned in his appointment letter) and then on his last day goes to HR, gives Exit Interview, fills all F&F papers and leave for the day. In such cases, normally, employer does not hold his salary/ payment and final payment is made within 3-5 days.
  • Case A: If an employee has got a job elsewhere and his new prospective employer is forcing him to join within say 10 days. In that case, this employee will give 7-10 days notice to his co. and forcibly leave the co. to join new one.
If this happens, then the company can calculate employees last earned salary, LTA, leave encashment, gratuity, bonus etc. and then may recover the rest of 20 days notice pay from his earned income and is liable to pay his rest of the sum to him. If co. still holds this employee's salary, it will be illegal. Such an employee may seek legal help through labour dept/ court etc.

In some cases, if the employee is mature enough then that employee may even ask his new prospective employer to buy his notice period. Meaning, the new co. which i hiring him on a short notice, has to bear his notice pay whatsoever, before he joins them. This is a safe way out and happens only in certain senior/ mid level positions.

No company can hold employees F&F payment forever. Yes, it is observed that some companies tend to hold it for long, just in order to frustrate the employee such that he himself stops asking for his money. But if you keep trying the co. shall have to give you your dues.

But this surely doesnt allow you to hop your jobs every year or six months. If you have worked in a co. even for few months, you should have a safe Exit. This way you may get even a single rupee due from your co.

Regards,
Parul Makkar
Human Resources

From India, New Delhi
Hi,

An Employee is governed by the terms and conditions as mentioned in his appointment Letter and by the Company's Service Rules and Regulations.



Therefore in this case, you would have to check, what are the terms mentioned in the Appointment Letter. Does the Employee pays notice pay in lieu Notice? If yes, then the Company has got the right to recover the same from him.

Secondly, has the Company accepted his resignation letter? If yes, then has the releiving letter issued to him?

If the releiving letter has not been issued to him, the Company can first write to this employee stating that his releiving letter would not be issued untill and unless he pays back to the Company the Notice Pay amount. You can also insert a threat therein that you can contact his new employers, that he(employee) has not been releived from the services of the Company, and would initiate appropriate legal action against him.

But If the Company has issued the releiving letter, then it can only file a suit in the Civil Court for recovery of money through specific performance of contract (the appointment letter is a contract between the employer and the employee)But since the Notice pay amount is too small vis a vis the litigation costs, Company's do not resort to the same.

In case of any further clarification, please do revert,

Ashish.

From India, Pune
Dear Outlook,
When new month starts you just pay your employees their one months salary. You can hold their provident fund or can deduct an amount equal to their salary from their dues.
Another way of taking preventive action is that you start deducting a fixed amount of money from their salary as a "security".
Your company should hold some of their money equivalent to their salary.
regards,
Asad Ahmed.

From Pakistan, Karachi
The action that an employer can take against an employee who exits the job without settlement of dues depends largely on the terms of the Offer of Appointment and the Standing orders applicable to the employee. Even if the terms does not provide for such a situation, the employer can file a civil suit against te employee for recovery of money etc.
From India, Hyderabad
My dear Asad
All the suggestions given by you, are illegal according to the Indian Laws.
Kindly note :
  • A company CAN NOT HOLD P.F.
  • A company can not make any UNAUTHORISED, ILLEGAL DEDUCTION (Re : Payment of Wages Act)
Are you working overseas (out of India) ? If yes, then may be the local laws allows you.
If you are working in India, kindly study the labour laws, (else, you will land yourself and your company in legal trouble), before you call yourself an HR professional.
Regards.

From India, Delhi
Dear
I would suggest the following
1. Send him a letter stating the inconvenience caused and asking him to pay salary for the remaining notice period. Mark a copy of the letter to his present employer, if you know it. You may decide about actually sending the letter.
2. His application for transfer of PF is to be processed strictly on 'work to rule' basis.
3. Payment of gratuity, if it is due, could be processed very leisurely.
4. If there is any other due like bonus or incentive, deduct the amount and pay only remaining.
5. Finally give legal notice.
6. Send all correspondence to all his known addresses.
These are the things I can immediately think off.
Regards
KK Nair


Dear friend,
You will have to file a civil suit in the court and ask the court that as per the contract of employment he has to serve full 1 month notice and thus take remedy from the court of law.
Regards
Shekhar

From India, Mumbai
Dear Outlook,

What I can suggest based on the info you have provided is:

1) Send a letter to the employee through a registered AD informing him that his resignation has not been accepted and that he has to either complete his notice period and a proper handover or pay the salary in lieu of the notice period.
2) If no response with in a week, consult a lawyer and send him a legal notice for the same. Please make sure you have all the docs in place (appointment letter, confirmation letter, etc)
3) If still no response and if you know his current employer, you can write to them about the case (requesting confidentiality) and informing them that he/she has not been officially relieved and that he is on dual employment which is illegal as per the contract.
4) Yet if not response, based on the amount to be recovered, you can plan to file a suite against the employee.

Filing a suite at times is not only for the money, but also to set a precedent for others with in the organization to value their commitment.

Would highly appreciate any inputs or suggestion on this from the forum.

Regards,

"D"

From India, Mumbai
Dear Friend

I have been going through the replies.

What I find is that the prime motive for taking action against him is that he "waited long enough to get his salary and then did not stay even for 10 days and left in 4 days".

How did you find out that he "got the offer of some other company on 20th of June." ?

It is possible that the company had been pressing him for early joining, but he wanted to wait for his salary.

You might say, it is unprofessional and your company may be feeling miffed at. But remember that apart from his salary, he did not take anything along. He gave precedence to his "self-interest" than to honour the 30 days notice.

Please do not be vindicative. An employee is very puny and resource-less, when pitted against the might of a company.

Under such circumstances, good companies tend to be forgiving and ignore such infractions; rather than to act mean and make it a prestige issue to prosecute the ex-employee.

I personally know a case, where the company (a well known good Indian co.) had even written off the IT paid on his behalf, as the relevant documents were not produced subsequently by the ex-employee - simply because the employee had been a good productive employee during his tenure with the company.

Advise your company accordingly, rather than being vindicative (which is counter-productive). Believe me, it makes good business-sense in the long run.

Regards.


From India, Delhi

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