Dear Simihanspal,
If the concerend employee qualifies as a Workman under the Industrial Disputes Act,1947, then you should consider a very live possibility that he may challengs the Termination order if you decide to summarily terminate his services and you may find yourself on a weak wicket.
If he beongs to the Supervisory category then you may terminate him as per terms of his appoitment letter after giving him due notice.
However, you could have a one to one chat with him and appraise him of jeopardizing his future career prospects in case he carries with him the stigma of Termination and persuade him to submit his resignation and deal with his exit accordingly.
Best Wishes,
Vasant Nair
09667200654
From India, Mumbai
90If the concerend employee qualifies as a Workman under the Industrial Disputes Act,1947, then you should consider a very live possibility that he may challengs the Termination order if you decide to summarily terminate his services and you may find yourself on a weak wicket.
If he beongs to the Supervisory category then you may terminate him as per terms of his appoitment letter after giving him due notice.
However, you could have a one to one chat with him and appraise him of jeopardizing his future career prospects in case he carries with him the stigma of Termination and persuade him to submit his resignation and deal with his exit accordingly.
Best Wishes,
Vasant Nair
09667200654
From India, Mumbai
FIRSTLY TRY TO MAKE HIM UNDERSTAND IN POLITE MANNER & IF HE IS NOT READY TO UNDERSTAND THE FACTS THE JUST FOLLOW THE BELOW GIVEN STEPS:
1. FIRST SEND HIM THE ABSENTING LETTER BY REGD. POST ASKING FOR REPORT WITHIN 48 HRS OF RECEIVING THE SAME (AS PER ATTACHMENT1)
2. IF HE REPORTS BACK THEN DO NOT GO FOR TERMINATION-ASK HIM TO CONTINUE OR IF HE DOES NOT CONTINUES, JUST ASK HIM TO RESIGN SO THAT HIS f&f CAN BE PREPARED
3. IF HE CONTINUES THEN JUST MAKE HIM TO SIT IDEAL & AVOID GIVING HIM ANY ASSIGNMENT
4. AND IF HE DOES NOT CONTINUES ,HE WILL HAVE TO RESIGN OR HE WILL AGAIN IN THE CATAGORY OF ABSCONDING EMPLOYEES & IN THAT CASE COMPANY WILL NOT BE LIABLE TO PAY HIM NOTICE PERIOD AS HE WILL RESIGN BY HIS OWN OR HE WILL BE ABSCONDING
5. AND IF HE DOES NOT COME BACK OR RESPONSES AFTER FIRST ABSENTING LETTER, THEN SEND HIM SECOND & LAST ABSENTING LETTER (AS PER ATTACHMENT2)
6. AGAIN IF HE DOES NOT RESPONSES JUST MARK HIM LEFT IN YOUR RECORDS & THATS IT
7. IN FUTURE IF HE GOES FOR ARBITRATION THEN COMPANY MAY SHOW THE ABSENTING LETTERS SENT TO HIM & CAN DEFEND BY SHOWING HIM ABSCONDING. ALSO WE CAN ADD ANY CHARGE OR DEBIT AGAINST HIM
8. AND IF HE RESPONDED BACK AFTER SECOND LETTER THEN FOLLOW THE STEPS AS PER POINT NO.2,3&4.
NO NEED TO WORRY - ALWAYS AVOID TERMINATION-WE HAVE TOO MANY OPTIONS TO GET RID OF THESE TYPES OF STUFF EXCEPT TERMINATION
From India, Delhi
1. FIRST SEND HIM THE ABSENTING LETTER BY REGD. POST ASKING FOR REPORT WITHIN 48 HRS OF RECEIVING THE SAME (AS PER ATTACHMENT1)
2. IF HE REPORTS BACK THEN DO NOT GO FOR TERMINATION-ASK HIM TO CONTINUE OR IF HE DOES NOT CONTINUES, JUST ASK HIM TO RESIGN SO THAT HIS f&f CAN BE PREPARED
3. IF HE CONTINUES THEN JUST MAKE HIM TO SIT IDEAL & AVOID GIVING HIM ANY ASSIGNMENT
4. AND IF HE DOES NOT CONTINUES ,HE WILL HAVE TO RESIGN OR HE WILL AGAIN IN THE CATAGORY OF ABSCONDING EMPLOYEES & IN THAT CASE COMPANY WILL NOT BE LIABLE TO PAY HIM NOTICE PERIOD AS HE WILL RESIGN BY HIS OWN OR HE WILL BE ABSCONDING
5. AND IF HE DOES NOT COME BACK OR RESPONSES AFTER FIRST ABSENTING LETTER, THEN SEND HIM SECOND & LAST ABSENTING LETTER (AS PER ATTACHMENT2)
6. AGAIN IF HE DOES NOT RESPONSES JUST MARK HIM LEFT IN YOUR RECORDS & THATS IT
7. IN FUTURE IF HE GOES FOR ARBITRATION THEN COMPANY MAY SHOW THE ABSENTING LETTERS SENT TO HIM & CAN DEFEND BY SHOWING HIM ABSCONDING. ALSO WE CAN ADD ANY CHARGE OR DEBIT AGAINST HIM
8. AND IF HE RESPONDED BACK AFTER SECOND LETTER THEN FOLLOW THE STEPS AS PER POINT NO.2,3&4.
NO NEED TO WORRY - ALWAYS AVOID TERMINATION-WE HAVE TOO MANY OPTIONS TO GET RID OF THESE TYPES OF STUFF EXCEPT TERMINATION
From India, Delhi
Dear friend
It is nice all the collegues have given valueable suggestons on the issue. But I would like to suggest that terminating any employee is a major punishment for which all the actions of the Management are subject to legal scruitiny. Therefore, much care has to be taken while terminating any employee. I suggest that before initiating action for termination, it is better to serve a show cause notice on the employee concerned ( irrespective of the terms of reference on the offer of employement, to meet the ends of natural justice) duly mentioning the imputations of his misconduct in detail and ask his explanation as to why he should not be terminated, by giving a reasonable time to offer his explanation. After receipt of the explanation, the competent authority has to examine the explanation in greater detail, and if necessary, after conducting a detailed enquiry on the allegations, final action has to be taken for terminating the employee with valid reasons together with material evidence to prove to show the imputations of misconduct against the employee, to avoid legal complications. Though the process is a long term process, it must be necessary to follow the same to meet the ends of natural justice, as otherwise, the issue will become a problem before a competent court of law.
Suri Babu Komakula
From Canada, Calgary
It is nice all the collegues have given valueable suggestons on the issue. But I would like to suggest that terminating any employee is a major punishment for which all the actions of the Management are subject to legal scruitiny. Therefore, much care has to be taken while terminating any employee. I suggest that before initiating action for termination, it is better to serve a show cause notice on the employee concerned ( irrespective of the terms of reference on the offer of employement, to meet the ends of natural justice) duly mentioning the imputations of his misconduct in detail and ask his explanation as to why he should not be terminated, by giving a reasonable time to offer his explanation. After receipt of the explanation, the competent authority has to examine the explanation in greater detail, and if necessary, after conducting a detailed enquiry on the allegations, final action has to be taken for terminating the employee with valid reasons together with material evidence to prove to show the imputations of misconduct against the employee, to avoid legal complications. Though the process is a long term process, it must be necessary to follow the same to meet the ends of natural justice, as otherwise, the issue will become a problem before a competent court of law.
Suri Babu Komakula
From Canada, Calgary
Dear Simi,
Views as expressed by Mr Kumar. S holds good. In today’s context no employer can discharge or dismiss a delinquent workman even for a serious misconduct without following an elaborate procedure for taking disciplinary action. It is only when the workmen is found guilty of the charge /s in an enquiry conducted as per the principal of natural justice, that the employer after following the procedure can punish him as per the company’s standing orders. Principal of natural justice clearly says that (a) No man shall be the judge in his own cause, (b) Both sides shall be heard. Hence, you give opportunity to the delinquent workman of being heard and conduct a fair and proper enquiry.
Ok, this was all about legal aspects which is always subject to being challenged in the court of law. In fact, you have a very good case with you where workman is willing to tender his resignation letter. Please take his resignation letter written in his hand writting with date clearly mentioned(no typed text please), accept his resignation, take NOC from all relevant departments and pay him his all legal payable dues. In my opinion, Management should not mind paying him three months' salary if you avoid the possibility of a future litigation. For this, you may ask him to request the Management in writting for paying him three months' notice as a gesture of good management.
Rgds,
Rakesh Pd Srivastav
From India, Gurgaon
Views as expressed by Mr Kumar. S holds good. In today’s context no employer can discharge or dismiss a delinquent workman even for a serious misconduct without following an elaborate procedure for taking disciplinary action. It is only when the workmen is found guilty of the charge /s in an enquiry conducted as per the principal of natural justice, that the employer after following the procedure can punish him as per the company’s standing orders. Principal of natural justice clearly says that (a) No man shall be the judge in his own cause, (b) Both sides shall be heard. Hence, you give opportunity to the delinquent workman of being heard and conduct a fair and proper enquiry.
Ok, this was all about legal aspects which is always subject to being challenged in the court of law. In fact, you have a very good case with you where workman is willing to tender his resignation letter. Please take his resignation letter written in his hand writting with date clearly mentioned(no typed text please), accept his resignation, take NOC from all relevant departments and pay him his all legal payable dues. In my opinion, Management should not mind paying him three months' salary if you avoid the possibility of a future litigation. For this, you may ask him to request the Management in writting for paying him three months' notice as a gesture of good management.
Rgds,
Rakesh Pd Srivastav
From India, Gurgaon
I agree with Mr.Kumar, Please conduct a domestic enquiry based on the chargesheet issued by you. Terminating based on the findings of domestic enquiry will save your organisation from legality as well a lesson to other employees.
From India, Madras
From India, Madras
Hi,
The misconduct alleged to have been committed by the employee has come on record. On this count, it is a risky proposition to terminate the employee by paying salary in lieu of notice period. You may land up paying heavy compensation, if it is challenged in the court of law. once misconduct appears on record, better, follow the procedure of domestic enquiry and if the charge is proved in the enquiry, he can be dismissed as per standing orders. Anyway, the question of paying salay in lieu notice does not arise, once DE is in place.
regards
prakash
From India, Madras
The misconduct alleged to have been committed by the employee has come on record. On this count, it is a risky proposition to terminate the employee by paying salary in lieu of notice period. You may land up paying heavy compensation, if it is challenged in the court of law. once misconduct appears on record, better, follow the procedure of domestic enquiry and if the charge is proved in the enquiry, he can be dismissed as per standing orders. Anyway, the question of paying salay in lieu notice does not arise, once DE is in place.
regards
prakash
From India, Madras
Dear Simi Hanspal,
It is safe if you talk to him and assure 3 months' pay if he resigns. If he agrees, then take a resignation letter from the employee. The resignation letter should be simple and briefly worded. No reason should be cited for the resignation. Resignation letter should contain a request to release the employee "immediately" or "as early as possible". Immediately on receiving such resignation letter, you release him same day. Along with the release letter, you must give him his full and final settlement money which must include 3 months' salary.
In case he does not agree to resign and wants to get terminated, then pay only 1 month's salary as compensation as per appointment letter and terminate him. After his termination, he may create problem in any way; then why should you pay him more than 1 month?
T. Chandran
From India, Kolkata
It is safe if you talk to him and assure 3 months' pay if he resigns. If he agrees, then take a resignation letter from the employee. The resignation letter should be simple and briefly worded. No reason should be cited for the resignation. Resignation letter should contain a request to release the employee "immediately" or "as early as possible". Immediately on receiving such resignation letter, you release him same day. Along with the release letter, you must give him his full and final settlement money which must include 3 months' salary.
In case he does not agree to resign and wants to get terminated, then pay only 1 month's salary as compensation as per appointment letter and terminate him. After his termination, he may create problem in any way; then why should you pay him more than 1 month?
T. Chandran
From India, Kolkata
Dear Simi,
To give an answer to your question , we must know in what industry you are undertaking business because rules are different in various acts depending on the industry under which it falls .
Regards,
Srinivas
From India, Hyderabad
To give an answer to your question , we must know in what industry you are undertaking business because rules are different in various acts depending on the industry under which it falls .
Regards,
Srinivas
From India, Hyderabad
Dear Friends,
This gentleman in question has gone ahead and joined another company without getting clearance from our side. He has been absconding since 22nd Oct and was aggressively asking for 3 months pay and termination letter.
Can you pls advise the best way to handle this now that we know he has joined another company.
Rgds
From India, Delhi
This gentleman in question has gone ahead and joined another company without getting clearance from our side. He has been absconding since 22nd Oct and was aggressively asking for 3 months pay and termination letter.
Can you pls advise the best way to handle this now that we know he has joined another company.
Rgds
From India, Delhi
Dear Simihanspal,
My views dt.20.11.12 holds good even now. As it is clear, you have to conclude his case by adopting necessary procedure, instituting a formal Inquiry etc. and close his file terminating his service ultimately without any terminal benefits(forfeitting). As an extra-ordinary measure you may also lodge a FIR with local police "of absconding" and loss of co. properties and inform/notify action taken ensuring proper acknowledgment of communication to his last known address and to his immediate family members. Nothing wrong in giving an advt. "Missing" in local dailies as well with or without his photos. I think there is no question of 3 months pay as still he is "absconding". Incidentally how he is"asking for 3 months pay" any contacts ?
First step - notice to appear at the office within a week, second - show cause notice, also suspension pending inquiry (ensure subsistence allw. to his bank a/c., third-2nd show cause notice, third-charge sheeting him and publication in dailies, fourth-personal hearing, fifth-findings, sixth-dismissal. It is a slow process, don't mind it. Mate, how many years service he had put in ur. firm ? was he a permanent employee ? Was he indispensable in yr. dept.?
kumar.s.
From India, Bangalore
My views dt.20.11.12 holds good even now. As it is clear, you have to conclude his case by adopting necessary procedure, instituting a formal Inquiry etc. and close his file terminating his service ultimately without any terminal benefits(forfeitting). As an extra-ordinary measure you may also lodge a FIR with local police "of absconding" and loss of co. properties and inform/notify action taken ensuring proper acknowledgment of communication to his last known address and to his immediate family members. Nothing wrong in giving an advt. "Missing" in local dailies as well with or without his photos. I think there is no question of 3 months pay as still he is "absconding". Incidentally how he is"asking for 3 months pay" any contacts ?
First step - notice to appear at the office within a week, second - show cause notice, also suspension pending inquiry (ensure subsistence allw. to his bank a/c., third-2nd show cause notice, third-charge sheeting him and publication in dailies, fourth-personal hearing, fifth-findings, sixth-dismissal. It is a slow process, don't mind it. Mate, how many years service he had put in ur. firm ? was he a permanent employee ? Was he indispensable in yr. dept.?
kumar.s.
From India, Bangalore
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Termination-emp loyment_563.pdf
Termination letter.doc