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1.Is it legal and right for company to ask for recovery of notice period in absconding cases? Please provide reason.
As the clause has been mutually accepted the company has every right to recover the notice pay.
2) In above case after clearing notice period dues, Is employee entitled for reliving letter? Why?
The clause states that 1 month notice or salary in lieu of notice. The employee has paid you the notice pay. So it will be appropriate on your part to issue him a relieving letter.
3) How absconding termination is different from other terminations (from notice period angle)
Termination done by the employer is done for poor performance or misconduct warranting termination of service. In absconding cases this question does not arise the only error committed by him is failure to report for work. It is cessation of service similar to resignation and cannot be deemed as termination.
If you view it as termination then it will mean that you will be required to pay the notice pay instead of the employee as the act is on your part and not on employees part. So it will be wise on your part to receive the notice pay and issue him a relieving letter.
Trust matter is clarified
18th December 2010 From India, Madras
18th December 2010 From India, Hyderabad
I have gone through the discussions; and I find the responses as fair and appropriate.
Now, I would lke to know your views on the following questions :
Why are you insisting on a SC/HC judgement, just to provide a relieving letter ??
Don't you think it is fair enough, once the employee has cleared all the dues ??
Do we need SC/HC judgements for everything in life ?
Do you need any SC/HC judgements to post your queries in this forum ?
Well, I think it is ridiculous to demand judgements for doing every right thing ? No !! What do you say ? (See my last question).
An employer is expected to be fair and benevolent to his ex-employee and is not expected to display any animosity or vengeance.
19th December 2010 From India, Delhi
In managerial functions, there is a need to use our own brain rather than trying to walk only after getting hold of some one else's finger, as like a young baby.
We must not stop performing our duties & responsibilities in looking forward for SC or HC judments on every trivial matter.
19th December 2010 From India, Delhi
Organization stands on a flimsy ground if the employment offer provides an option of serving the notice period or paying off for the notice period (If notice period is not a mandatory option & pay off option is at the discretion of the organization) . If the company has accepted the notice dues from the employee even if the employee does not serve his notice period then the organization is obligated to provide him a relieving letter. If the company doesn't release the relieving letter after collecting the dues then it amounts to cheating & the company can be taken to court. Ideally the company should contemplate if they have accept the notice period due or other options before accepting the due amout lieu.
19th December 2010 From India, Madras
Absconding employee most of the time clear his dues after long time (around 1 year from absconding) when other organisation ask for reliving letter. In absconding cases after following process company issues voluntary absconding letter asap. For giving reliving letter Is it right to over right this letter?
If company will give reliving letter to absconding employees then don’t you think employees will take it as valid and acceptable practice which will lead to more absconding cases?
If there is no legal judgement on this then it is gray area and every organisation will make their own policies. Some organisation will accept recovery from absconding employee and give them reliving letter and others will not accept recovery and terminate employee and few (at least) will accept recovery but not give reliving letter and give some other letter.
It will lead to chaos which will not be beneficial for HR industry that’s why I am giving so much importance to Legal judgement. HR policies at broad level must be same all over the country and Industries.
I will again request for legal judgement and I think this forum is right place to start with.
19th December 2010 From India, Hyderabad
whether you are terminating him or
a resignation letter is received from the absconding person.
If you are terminating an employee, that accounts to punishment and seriously requires a domestic inquiry on the same.
have you given proper and fair chance to the employee to prove his cause. does your standing orders have a clause regarding unauthorised absence, have you given a chargesheet for the misconduct. These will prove to be helpful in the separation of the employee properly.
If it is a resignation then there is no complication.
19th December 2010 From India, Mumbai
The Bombay Shops and Establishments Act Sec 66 proviso (a) says that notice of termination is not required under Sec 66 if an employee absents from service without notice in writing or without sufficient reasons for seven days or more which can be construed as misconduct .
Consequently the severance of the Employee for absence from duty has to be in tune with the above legal requirement.
Relieving letter means relieving the employee from the Service of the Employer.It can happen on resignation,termination or absconding.If the employer does not wish to issue relieving letter in absconding cases then experience certificate can be issued.
Recovery of Notice pay can be done for high end jobs and not for jobs where the salary is equal to the minimum wage or just above it.The employer has to expect such eventuality. Many absconders have real reason to do it.
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19th December 2010 From India, Bangalore
INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946
INDUSTRIAL EMPLOYMENT (STANDING ORDERS) CENTRAL RULES, 1946
INDUSTRIAL EMPLOYMENT (STANDING ORDERS) CENTRAL RULES, 1946
Where there in implicit provision for the issue of Service certificate at the time of dismissal, discharge or retirement from service. as per Rule 16 & 20
the following constitute the misconduct as per ibid.
The following shall denote misconduct:
(a) Theft, fraud, or dishonesty in connection with the employer’s business or property.
(b) Taking or giving of bribes or an illegal gratification whatsoever in connection with the employer’s business or his own interests.
(c) Willful insubordination or disobedience, whether alone or in conjunction with another or others, or of any lawful or reasonable order of a superior. The order of the superior should normally be in writing.
(d) Habitual late attendance and habitual absence without leave or without sufficient cause.
(e) Drunkenness, fighting or riotous, disorderly or indecent behaviors while on duty at the place of work.
(f) Habitual neglect of work.
(g) Habitual indiscipline.
(h) Smoking underground within the area in places where it is prohibited.
(i) Causing willful damage to work in progress or to property of the employer.
(j) Sleeping on duty.
(k) Malingering or showing down work.
(l) Acceptance of gifts from subordinate employees.
(m) Conviction in any Court of Law for any criminal offence involving moral turpitude.
(n) Continuous absence without permission and without satisfactory cause for more than ten days.
(o) Giving false information regarding one’s name, age, father’s name,
qualification or previous service at the time of the employment.
(p) Leaving work without permission or sufficient reason.
(q) Any breach of the Mines Act, 1952, or any other Act or any rules,
regulations or bye-laws there under, or of any Standing Orders.
(r) Threatening, abusing or assaulting any superior or co-worker.
(s) Habitual money-lending.
(t) Preaching of or inciting to violence.
(u) Abetment of or attempt at abetment of any of the above acts of
(v) Going on illegal strike either singly or with other workers with out giving 14 day’s previous notice.
(w) Disclosing to any unauthorized person of any confidential information in regard to the working or process of the establishment which may come into the possession of the workman in the course of his work.
(x) Refusal to accepted any charge-sheet or order or notice communicated in writing.
(y) Failure or refusal to wear or use any protective equipment given by the employers.
20th December 2010 From India, Chandigarh
Mr.Dhingra is absolutely correct.
Act wisely according to the situation. If an employee abscond without informing the employer, as an HR person, we should write a letter to his/her last known address through Registered Post with A/D and wait for a week's time, if he/she doesn't turn up, you may send a termination letter citing all the points available with you.
20th December 2010 From India, Bangalore
In my opinion when the services are terminated by the company the question of recovery of salary in lieu of Notice period does not arise. Secondly, when the company is terminating the services means company is terminating the contract and under this circumstances company is liable to pay the Salary in lieu of notice.
If services are terminated and letter to that effect is issued the question of relieving letter does not arise.
Termination of services of any employee, if he is not a workman under Industrial Dispute Act, should not be a problem. But termination of services of any employee (if he is a workman) without conducting domestic enquiry would be a problem.
20th December 2010 From India, Pune
I found this topic intresting and many insight to this issue.
Can we not think in other angle like:
1. Why does the employee abscound?
2. Why does he not inform the superior prior leaving?
3. Is there any HR lapse that the employee does not give resignation letter?
4. Is employee - supervisor relation smooth?
5. etc etc.
It is said that the employee leave the boss and not company. My practical experience is that total 18 employees left the job because of the Boss (including me - who got transferrred to other business in same group). We also had an employee who absconded and left without notice period or relieving letter - simply because of harrassment from HR and other company has made him join without relieving letter. Present scenario is that the employee is relieved with good relations with memories and permitting him to rejoin if other company does not suit him. I belive in this whole discussions that if the positive attitude is prevailing then there wont be any issues such as abscounding cases.
This are solely my views and do not mean to hurt any seniors in HR field. Each personnel views may differ.
20th December 2010 From India, Mumbai
i had gone through the problem and discussions posted here, so i think even though the employee refused to respond primarily ,later he/she responded, its better to issue him/her the relieving letter. and before taking decision about termination of an employee from organization, its better to analyse the employee for some more days if you found anything wrong in the observations then you can proceed to the process of termination.
hope my suggestion is valuable....
20th December 2010 From India, Calicut
Eventhough you may be a HR person, certain things should be analysed on humanitarian grounds too.
Please note that an employee who takes leave for more than 10 days without any notice to the employer, we may terminate him from the services of the organisation. That is absolutely correct.
In such case, will the company accept when the employee agree to work for the notice period (which will not be advisable).
As you are aware, relieving order is must for the employee to join other organisation.
20th December 2010 From India, Madras
Notice period / notice pay and other benefits to be given to the Person who got retrenched by the company and who got terminated by the company due to mis-conduct or due to irrecoverable loss made by him (you can make good for the loss/damage caused by him).
For Resignation cases you need not pay anything except his leave pay if applicable or even you can recover the notice pay or instruct him to serve for the notice period. (Here, he is eligible only for Leave pay)
For Long Absent cases, (i) Serve him a notice to return for duty within ___ days on receipt of this letter.
(ii) Serve him second notice after _____ + 2 days by mentioning that he is liable to be prosecuted for his lapse and to save himself from such litigation you can request him to join within ____ days for duties.
(iii) Serve him Third and Final notice stating that evenafter sending you 2 notices you have not responded / turned for duty, which seems that you are not interested to resume your duties. Hence you have been terminated from this organisation on __________ (Last date of his attendance) or (Next date from his last day of leave). You are advised to come and collect your Full & final settlement by _________ (date) after making your necessary clearance procedure.
I think, this correspondences will help us to keep in safe side even if he approach any court of Law.
With warm regards
20th December 2010 From India, Kumbakonam
my point wise advice is as below
i)Yes . Coy. has every right to enforce adherence to notice period /pay in lieu thereof as per terms of contract..
ii)Yes. employee is entitled to relieving letter as he has fulfilled his part of contract of services.However coy should see that he has no dues or coy. property ( ID card/Laptop/Mobile etc.)remaining with him.
iii) Absconding means absenting from duties without applying for his leave due. This is is a misconduct on the part of an employee for which disciplinary proceedings can be started against him if he is a habitual offender/repeateror is absenting for a long or not responding to comy letters for joining his duties.Any such act by an employee leads to disruption in the office work.
However if coy. chooses to accept the notice period dues, it tantamount to absolving him of his misconduct.Please note that"Termination" in absconding cases can only be done after going thru the process of holding disciplinary proceedings, as termination is a major penalty.
Ultimately it is for the company to decide the alternative to choose depending upon the circumstances of each case and the employee being dealt with and there can be no strait jacket formulae for these type of cases.
Hope u are clear in this aspect of HR now.
HR CONSULTANT AND LABOUR LAWS ADVOCATE
20th December 2010 From India, New Delhi
21st December 2010 From India, Mumbai
But this is not all. the company should initiate Domestic enquiry / Disciplinary action on the employee and if the employee is not attending the DE, the same may be conducted ex-parte and he may be terminated or punished according to the severity of the misconduct. In any court of law, the company should be able to prove that the misconduct was severe and has caused damages to the company / image.
if such a process is not followed, then the company is vulnerable for court orders against it (if the terminated employee approaches the court)
21st December 2010 From India, Mumbai
I totally agree with all. Now a days we always try to refer some authority made by Government/ SC/HC but not using our brain. All laws made as per such circumstances where no body stand with the complain. we became habituated to look back and go forward.
Thanks all of you for your valuable opinions.
21st December 2010 From India
If u r having a certified standing orders,then absconding will be a misconduct of unauthorised absence and u may have to take discplinary action to terminate his service by giving an oppurtunity of hearing.If you are not covered under Standing Orders Act and not having a standing order then you may go for termination under clauses of the appointment order/service rules ,if any.In any case there is no harm in releasing the relieving order if he has paid your dues.Even in case of termination ther is no harm in issuing relieving order citing the reason for termination.A relieving order is always safe as the severence of relationship gets communicated limiting company's liability.It is a very important communication internally also to all your branches and departments so that no connected person would transact with an employee who has ceased to be in the company.
21st December 2010 From India, Coimbatore
If a person not reporting for duty without any valid reason after serving notice to him, first notice only to call and report for duty. second notice if the employee not reported he will have to face the administrative / disciplinary action for not reporting in time for duties. If he does not turn for duty then, the company is not having any other option except removing him from his services. hence the third and final notice stating that the existing conditions are such that he will not resume his duties. So he can be called for collecting his experience certificate and full and final settlement from the company.
Please note that no employee should feel harassed at the time of Full and final settlement. They must go with some sweet memories. If you really want to show your power you must show the same to the existing employees and not to any ex-employees or prospects.
With warm regards
21st December 2010 From India, Kumbakonam
Thanks to all for their valuable contribution. What I understand from all the discussion is given below in nut shell.
Company should follow all the due procedure in case of absconding and must provide reasonable opportunity and notice to employee. If then also employee do not revert or avoid company then company should issue exit letter to him.
Now, if company ask for recovery of notice period and employee clear it’s then company should give reliving letter to employee.
If company don’t want to issue reliving letter to employee then in first place company should not ask for notice period.
Please correct me if I am wrong
21st December 2010 From India, Hyderabad
Discussion has raised many questions and doubts in my mind and these doubts are not addressed satisfactorily, so far:
- Employee is terminated, he has not resigned, how employer can ask for Notice Pay from employee ??
- Is it mandatory on part of employer to give notice pay to terminated employee, who is terminated on the grounds of Misconduct ??Once Termination Letter is issued, what is a need of issuing another Relieving Letter ?? I believe Relieving is automatic with Termination ??
- If at all Relieving Letter is to be issued, can we not mention, reason for separation as 'Termination due to unauthorized absence' in Relieving Letter.
- Terminated Employee may also demand Service Certificate and again should we not mention reason for separation as 'Termination due to unauthorized absence'
22nd December 2010 From India, Pune
You have raised very valid and vital questions. Probably your queries would be satisfied by the following clarifications:
1) In case of termination in the unauthorized absence, as a misconduct, there arises no question in asking for a notice pay by the management. The question of notice pay arises only when the employee desires to resign voluntarily or the management on its own desires to terminate his/her services. Here it is a case of termination as a matter of punishment.
2) As discussded in (1) above, since termination in this case will not be voluntary on the part of the management, but being on account of misconduct on the part of the employee, no notice pay becomes due to be paid or any relieving letter becomes due to be issued to the employee on the part of the employer. Relieving letter becomes due on retirement or on resignation by the employee.
3) The termination letter, itself, contains the reason for termination on account of misconduct along with justification for that action, so that itself would become a termination cum relieving letter for the employee.
4) Irrespective of termination on whatever reason, the employee has the right to ask for the service certificate, as he/she has rendered service to the organization. There is no reason for not issuing a certificate of service, if demanded by the employee. The management, however, can make a mention in that certificate the reason for termination of service of the employee.
Management & Vigilance Consultant
Dhingra Group of Consultants
23rd December 2010 From India, Delhi
I request all those having contrary views to Mr. Dhingra to further discuss and comment.
23rd December 2010 From India, Pune
I have a different opinion. Here in this case the company has already terminated the services of the employee( unilaterally ) and thus demanding payment in lieu of notice period post termination doesn't make a valid demand.
Why the employee should insist on relieving letter? How it is going to help him in getting employment in future ? Will the company write " Resigned on his own accord " instead of "Terminated on account of being absent unauthorizedly " as the reason for termination in the relieving letter if the notice period payment is made ?
However in this case the employee has made the payment as demanded by the company. Under the circumstances his relieving letter can not be withheld. I find it a fit case to be contested legally.
23rd December 2010 From India
2) It is obligatory on the part of employer to issue Service Certificate alongwith his final settlement.
3) If the employee, during the period of absconding, was employed some where else, the organisation can recover the notice pay.
23rd December 2010 From India, Surat
I think, before posting your queries, you have not read thoroughly my clarifications on this page itself. I feel the replies to your queries have already been answered in my post at this very page in my yesterday's post. However, you are welcome if you still have any doubt after reading my ealier post of yesterday.
24th December 2010 From India, Delhi
Thanks for your mail.
The sole purpose of my mail was to make it clear that (a ) the action taken by the company , in the manner described in the post , was totally wrong and against the principles of natural justice and (b) employee would also not be benefited in any manner by depositing the notice pay because the reason for termination will be stigmatic and won't help in getting job in future and (c) if the employee were to contest his termination legally I am very sure that the company will lose and will have to reinstate the employee back in service.
24th December 2010 From India
I am surprised to see ur comments that the views expressed by all were contrary to the views of Mr. Bhanot and Dhingra as it appears that u hav not gone thru my views serously. in my writings i have given u a insight of problem beyond ordinary and dealt it in a very broader context to make the disussion a complete piece of advice.
Advocate and HR consultant
24th December 2010 From India, New Delhi
- The words I have used in my post are ' most posters have contrary views to those of Mr. Dhingra' and not 'All' as stated by you.
- I once again went thru your earlier post and to my surprise your views seem to be contrary to those of Mr. Dhingra. I quote here very first line of your post 'i)Yes . Coy. has every right to enforce adherence to notice period /pay in lieu thereof as per terms of contract..'
- The very basic point me and Mr. Dhingra endorsing here is 'Employer can not and should not ask for Notice Pay from Employee, whose services are terminated by Employer'
more at https://www.citehr.com/304088-abscon...#ixzz19HstBwiH
27th December 2010 From India, Pune
I think there should not be any controversy on the points raised by you, Ck Safaya or Mr. Dhingra.
I had been following this thread; and I find that all three of you have given very good, precise and relevant inputs; though they are in different words but with the same spirit, which comes out of experience and expertise; and all of you deserve kudos for your contributions.
If here and there, there are any small aberrations or misunderstandings (which does not veer away from the broader concepts) ; let us IGNORE these; or else clarify through PM (Private Messages) to each other - so that other members, esp. freshers, do not get CONFUSED.
It is my humble request to all contributing senior members who have been nurturing individual threads with their time and efforts.
27th December 2010 From India, Delhi
As a HR professional, we are facing the same situations / difficulties as & when such employees leave the organisation without clearance, Notice Pay or handing over the charge to their HOD's.
The above discussions has given a guidance for me as well as many of the HR Members who participate or join the Citeman network. But one question which arises in my mind is that the absconding employee don't care for the organisation for the above formalities & the HR has to do his job by sending 2 Notices & then the Final notice of termination thereafter[without short noticepay] & even then the HR donot has the right for recovering short notice or punish such offence so that the other employees while leaving the organisation dont follow the same way.
2nd January 2011 From India, Mumbai
With warm regards
3rd January 2011 From India, Kumbakonam
The Standing Orders Act/Rules already provides for that the absenting more then 10 days is a misconduct and employee can be proceeded against.
There is no need to put a bot in the Appointment Letter to this effect. Rather this can be put in the "Attendance/Leave Policy". In the Appointment Letter it should be mentioned that service of the Employee will be governed by the "Various Policies" of the Organization.
3rd January 2011 From India, Chandigarh
1.Suppose a company has made a provision for notice period of 3 months from employees side and 1 month from its own side.
2.There is a provision that the employee can not apply any job within two years.
3. The employee has higher qualification and he can get a better job. Actually this job is well below the level of his qualification and he is joining this job only to avoid his financial burden till the moment he does not get better job. Also the employee has not told to the new organization about his current employment as he knows that no NOC will be issued.
4. As company has itself forced him to conceal information about his application for new job (by provision that he can not apply for a new job for two years), the employee gets a better job within a year and he subsequently resigns by declaring that he will pay bond amount and salary in lieu of notice period. (Although no bond has been signed and it is mentioned only that a bond for X amount will be signed).
5. His immediate bosses make remarks on his resignation that 'may be accepted with suitable releiver '. He gets the copy of resignation letter at this stage after remark and submit it to his boss for onward submission
6. The company does not inform anything to the employee for a very long period and suddenly serves anotice of unauthorised absconding and asked him to join duties.
7. Since the employee has already joined the better job, he simply ignores the notice as obviously he will not join the old job only to get lesser salary and problems of disciplinary proceedings etc.
8. The company terminates him after this first notice. The company may have not taken cognizance of his resignation or probly the boss having resignation letter may not have submitted it to the higher officers. The employee does not know the exact case.
Now imagining above scenario, submit youe views on the followings:
(i) Whether the company has any right to seek bond and notice period amount (remember no bond has been executed and it has been mentioned only in offer letter). The employee has signed it by making remark as i accept all the terms and conditions.
(ii) Whether the employee can get his provident fund (in the tune of Rs. twenty thousand) and whether he should apply for it through the old employer who terminated him or directly through EPF office.
(iii) whether the employee should ask for experience and service certificate. Obviously asking for a releiving certificate will only be a foolish act.
Hope you people will help this employye.
4th July 2011 From India, Delhi
I used to work for a company and absconded after working for just about 1 month and 15 days(I was on probation) as I got a better opportunity elsewhere, I spoke to manager and HR that I'd got a better job and as my financial position is weak I have to take it hence,they said they'll treat me as absconded and terminate me(I submitted all company articles with me back to them) Now after almost a month from my last working day they've mailed me asking for F & F settlement amount which I can't afford to pay, they have also mentioned that if I fail to pay dues within 3 days they will be constrained to initiate appropriate action against me, however there is a sentence in the mail that says It is only on receipt of recovery amount They will provide experience or releiving letter, friends I'm scared and need to know If I can ignore it and not pay anything, I don't want experience letter, I know it will affect my future but I can't afford to pay the amount.I'm cornered please help me guys
20th December 2017 From India, Ahmedabad
I think both of you would have accepted and signed the offer letters/appointment orders during the initial phase of your employment itself with your eyes and minds wide open only. Whatever be the compulsion of your situation then, making a counter offer or a request to amend the conditions which were unfavourable or unacceptable according to your perception would have been better when your inclination was towards a better job. There is no point in scanning the loop holes of the terms now to your advantage when you wantonly breached the exit conditions of the contract of employment which you agreed earlier in totality.
Coming to the queries of Ahuja which were raised in 2011 but still alive unanswered, once the employer terminated your services on the ground of unauthorised absence, they can not take any action for violation the bond which was not actually signed and executed by you. If you have documents proving your employment and membership with EPF, I think you can submit your application for withdrawal direct to the EPFO after getting it attested by the Labor Officer for the area. Your own statement answers your third query. Hope you will give a feed back now.
About the post of Adventurer, strictly speaking, you are in the employment of the previous organization on record since no final action was taken so far against your unauthorised absence. Call on the HR and pay the dues as per the exit terms of your contract of employment.
28th January 2018 From India, Salem