Absconding Employee Dilemma: Should We Conduct an Inquiry or Proceed with Termination?

Respected Seniors,

I want to seek your advice on an absconding case in my company. An employee has not been reporting for duty since December. I have issued 3 Absenteeism letters in his name, but due to some confusion, I sent these letters to his Temporary Address. Upon discovering that there is a permanent address listed somewhere in his personnel file, I issued one more warning letter referencing all previous letters to both his temporary and permanent address.

Now, I am confused about what to do next. Should we draft a chargesheet in his name and conduct a domestic inquiry, or since he has been absconding for several months, should we directly issue a termination letter in his name?

Please advise on the next steps.

Regards,
Ranjeet

I believe you must have the HR policies of the company stating that if a particular employee does not turn up after 5 continuous days of absenteeism - with no notice, then he is terminated. Well, we have one like that. In this company as well as the previous company. I think you should go for termination with final notice because it was his responsibility to keep you posted on the absence. He must have taken an offer elsewhere, where that company must have wanted him to join immediately. Anyways - please ensure if the company policies state anything on such circumstances. Discuss with your seniors and decide if you'd have to go in for a domestic inquiry. Thanks

Dear Ash,

I just want to correct you on this concept. Companies make their policies in light of labor laws and other statutory requirements. When there is an employee who has been working in your organization for more than 25 years, you cannot terminate them directly, except in the case of 5 consecutive days of absenteeism. We have to take additional steps that should be legally correct.

Regards,
Ranjeet

If he has worked for 25 years, then I am not sure of what exactly can be done. But, there must be his peers who are well aware of the situation and what is happening at his end. It's been over three months since this person has not reported. Try finding out the reason and, side by side, work along with your seniors on this issue.

Dear Jeeni,

Of course, the termination is subject to the HR policy of the company. If an employee is absent without prior information and permission, then after giving him notices to come back to report for duty along with the reason for the absence, if the employee does not turn up, then for safety reasons, it is better to conduct an inquiry, naturally an ex parte inquiry, and dismiss following the provisions of the law.

Dear Ranjeet,

If an employee is not reporting for a long period despite reminders sent from your side, it shall be deemed that he has abandoned the job. He can be terminated without conducting a domestic enquiry also. However, to be on the safer side, you can follow these steps.

1. Since you have already issued two or three warning letters, you can send another letter to his permanent address and also post a copy on the notice board of the company, calling on him to show cause why action, including discharge, should not be taken against him.
2. The letter should be worded in a way that gives the impression that the employee has left/abandoned the job and is no longer interested in continuing with you. The letter should direct him to explain the reasons for his absence without intimation and caution him about the consequences, which include termination without further notice or opportunity to be heard.
3. If he does not respond, a termination letter shall be sent to the address with a copy posted on the notice board for display.

I believe that you are working with TATA or some other big establishment. Am I wrong? If not, you may have some provisions in the Standing Orders in this regard. Please go through that and ensure if any notice is required to be given in the newspapers. Publishing a show cause notice in the newspapers depends on the category of the employee and the responsibilities held by him. Normally, for managerial personnel, it is always desirable to publish it so that any person dealing with him is cautioned about the charges leveled against such an employee.

Conducting an inquiry is relevant only when he denies the charges. If so, you can proceed with a domestic enquiry.

Regards,

Madhu.T.K

Dear Jeeni,

Regarding absenteeism case,

1) Send a warning letter in the local language to his permanent and temporary address via registered post and also through UPC (Under Postal Certificate).

2) Send a chargesheet cum enquiry letter in the local language to his permanent and temporary address via registered post and also through UPC.

3) Conduct a domestic enquiry either in the company or outside as per your lawyer's advice.

4) Based on the enquiry report, terminate him and pay him all his legal dues if any.

I hope this will solve your query.

Regards,
Mahesh

Dear [Name],

Suppose your employee who has been absent since December is seriously ill and has been admitted to the hospital since that day. All of his family members are currently caring for him in the hospital. Today, you terminated his services, and tomorrow he arrives with a medical certificate issued by the hospital. In my view, a domestic inquiry is necessary before termination, and the inquiry should be conducted following the principles of natural justice.

Company policies must be formulated by considering different laws; you cannot create policies on your own.

Thank you,
J. S. Malik

Dear All,

Thank you for your advice. Madhu, sir! I just want to confirm the purpose of the letter displayed on the notice board. Public notification is okay as most of the PSUs are following it. Please also advise on Malik, sir's reply.

Regards,
Ranjeet

Hi,

Please bear in mind that whenever the services of any employee are to be terminated by way of dismissal or discharge for the commission of any misconduct like "absenteeism", it is prudent to follow the procedure of:

1. Communication of charges through a Charge sheet,
2. Holding a domestic enquiry, and
3. Passing final orders based on the enquiry report.

If the employee doesn't appear in the enquiry, an ex-parte enquiry can be held after informing him at the "last known address" as per the company's records. A copy of the intimation can be displayed on the notice board.

This is the safest method of dealing with disciplinary cases. It is better not to attempt shortcuts as in the event the matter lands in court, one finds it difficult to defend the case.

Cyril

If all the measures of serving show cause notices three times and issuing charge sheets, subsequently pasting notice on his house, you may issue a public notice in the local newspaper as he has voluntarily abandoned his services and has no more interest. If he fails to report or intimates his intention to resume his duties within the stipulated time mentioned in the notice...

Badlu

Thank you for your responses. Could you please provide me with a proforma or draft of the chargesheet as this is my first time handling it? Do you recommend consulting a lawyer for this matter?

Regards,
Ranjeet

Dear Ranjit,

Try this.

"You have been absent from work/duty since ...... (date) ...... without intimation. As you are aware, absenting without proper communication of reasons is an offense/misconduct as per clause .... of our Standing Orders. The matter was communicated to you three times by sending letters to your address available in this office/personal file/records, but no reply from your side has been received to date. This clearly indicates that you are no longer interested in working with us, and you have abandoned your employment.

As per clause .... of our Standing Orders, absenting without intimation for a period of more than 7/10/14 days will lead to automatic termination of the contract of employment without giving any opportunity to be heard in this respect. However, it is decided to provide you an opportunity to be heard, and as such, you are hereby directed to explain in writing the reasons for your absence from work and show cause why action, including discharge from service, should not be taken against you. Your submission should reach us within 48 hours/7 days from this notice; failing which, we will be constrained to declare that you have abandoned your employment and take action accordingly."

Regards,

Madhu T.K

If he does not reply, then the next step is sending him a termination letter. There is no need to hold an inquiry in this case because an inquiry is held to give the employee an opportunity to defend the charges leveled against him. When he has not replied to the show cause notice, it shall be presumed that he has accepted the charges. However, if you so wish (I will not go for such a lengthy domestic inquiry if an employee fails to submit his reply to my show cause notice), another letter informing him of his termination may be issued. I am not that good at drafting; still, you can take it for reference.

"Whereas you have been absent from work since... (date)... And whereas a show cause notice was issued to you on... (date)... calling on you to explain your stand. And whereas you have failed either to present in person or to give any reply. And whereas the management cannot hold the matter pending for any more time.
Now, therefore, the management is constrained to come to the conclusion that you have abandoned the job.
In the above circumstance, you are given 7 days to present yourself at the office of the Personnel Manager/undersigned and receive the final order in this respect.
Signed this (date) day of (month) (year)"

The above letter gives no implication of direct termination but will support that the management has waited for his reply, and the management will be justified in doing so. Requiring the employee "to present in person to receive the final order" is a hidden line to give him yet another opportunity to come back or defend the charges. If he turns up, he may be given an opportunity to explain the reasons verbally, and if the Officer is convinced, he can ask him to give it in writing, and that will be treated as his reply to Show Cause Notice. On the ground of such reply, a domestic inquiry can be carried out. On the other hand, if even after sending the above letter he does not turn up, it is a clear indication of violation, and you can terminate his service.

Regards,

Madhu.T.K

Dear Madhu sir,

You are the one from whom I learn a lot. You are like the Droncharya who can still teach us without being nearby.

Please suggest that after doing the same, the last step will be public notification, a notice on the notice board, or pasting on his residential address.

Thanks

In case the employee does not appear, notice declaring his termination shall be put up simultaneously on the company notice board and at his residence, if owned by the company. If the residence is owned by the employee himself, pasting a notice that is not issued by an authority having judicial powers (like summons from the court, revenue recovery notices from Tahsildar/District Collector, etc.) may create other problems. Therefore, it is advisable to issue a notice in the newspaper, which will be treated as a caution notice to all who happen to deal with him, with the impression that he is still with you. You can remove his name from the muster rolls and inform the pay office and other departments accordingly. A copy of the termination letter is sufficient for this purpose.

Regards,
Madhu.T.K

Dear Sir,

What if the person is genuinely sick for a long duration (say for more than a month) and has informed the management/immediate superior a number of times? He has provided all the medical records of his sickness. Even after more than a month, the employee still continues to be absent due to sickness.

Can the employer still terminate his services after giving him notice? Is it mandatory to wait for a certain period of time before terminating him?

Regards,
Shailesh

Dear Mr. Madhu,

You are really contributing a lot to this forum. All the needy members should thank you. I just returned from Saudi Arabia after working in HR for more than 15 years. There, it is easy to terminate a staff member if he continuously remains absent without permission for 10 days; he can be terminated by posting a registered letter to his address. If he wants to keep the job, he should approach the labor commission, whose advice we will accept.

I believe all these termination rules are applicable only to permanent staff. Is it applicable to trainees or temporary staff with a consolidated monthly pay? If not, how long can an employee be kept as temporary or a trainee?

Regards,
Usuf - Chennai

Hi,

The first thing to remember is the observance of the required procedure, based on principles of natural justice, before taking final action against the employee. This helps us to counter all the subsequent pleas of the employee before the Courts.

In this particular case, a well-drafted charge sheet should be prepared listing out the misconduct. It should mention all the other correspondence on the subject. A date, time, and place of enquiry should be mentioned, and the same should be sent through a messenger or a courier to the last known address of the erring employee. He should be informed that the enquiry will be held ex-parte if he does not remain present on the date and time mentioned in the charge sheet. A copy of the charge sheet should be put up on the notice board. If there is a union, a copy should be sent to the union office also.

It is not obligatory to publish it in the newspaper, but if the company wants, it can do so. Having taken these steps, the company should proceed with the enquiry on the date and time fixed. If the worker is not present, the Enquiry Officer can proceed ex parte.

The Disciplinary Authority should take appropriate action based on the enquiry report. Before taking action, a copy of the enquiry report should also be sent to the charged employee for his comments.

The disciplinary Authority should thereafter proceed to take final action.

The entire process appears to be lengthy and tedious. There are many who feel all this is not necessary. However, the principles of natural justice demand that the charged employee must be afforded a reasonable opportunity before awarding major punishment to him.

I suggest you consider the above before taking final action.

Cyril

Dear All,

Hope you all are doing well.

My wishes for Dussehra and Diwali.

The recent update on these cases is that we have conducted the domestic enquiry for at least 2 months with the support of a lawyer. The enquiry officer has given the report in support of management.

Now we can terminate the employee, but due to certain reasons (I am not aware of), Management has decided to take him back.

My question is whether it is right to go through so much trouble for an absconding employee and bring him back on duty.

If we ask him to rejoin, what are the other formalities and procedures that we have to follow?

Now I have come across a very different situation where I need your suggestions.

An employee who was working in the security department was suspended from the services for 6 days only because he took leaves on false medical grounds. He did not report for duty after his suspension days.

The management has a contract or a bond with the employee to serve for at least 2 years because we provided advanced training to him in a foreign country. The training costs were fully incurred by the company itself.

Now, since he has not been reporting for duties, I have issued two memos to his residential address by registered AD and UPC, but he has never responded.

What should be our next step in this case, considering he is not responding and we have incurred significant costs for the associates? In the bond, it was also stipulated that if the employee does not serve for 2 years, he has to repay a minimum amount of 2 lakhs to the company.

I need your guidance.

Regards,

Ranjeet

Dear Ranjeet,

The management is the supreme authority. The Enquiry Officer might have come up with his judgment, but the same may be changed due to any outside influence. If the management is willing to take the accused back in service, why should we, the HR, object to it? Why should we, the HR, become another Roy J George?

Now, present a paper before the same management whether the days of his absence right from his suspension/days of disciplinary action, etc., should be treated as leave without pay and regularize the service, or should his rejoining be treated as a new appointment? If the management says that you can put the days as LOP and continue his service, you only need to get a joining report as is required for an employee "resuming duty after long leave." There will not be any change in PF Number and ESI (if applicable). If he should be treated as a new joinee, then all formalities required for a new joinee will have to be completed.

In your case associated with the Security Personnel who was given training in a foreign country, you have to be more concerned. This is because, though the employment bond is invalid, an employer is competent to recover any training cost incurred by him. Therefore, if he does not turn up, you have to follow up on the matter and send a legal notice calling on him to comply with the terms of the bond.

Regards,

Madhu.T.K

Dear Madhu Sir,

Thanks a ton!

Bonds are illegal according to the judgment of the Hon'ble Supreme Court. I would like to request information about the legal steps that we can take against the same employee. Do we need to go to court since the employee is not responding to our calls as well?

Regards, Ranjeet

The maintainability of a suit, even in the case of recovering training costs, depends upon the terms of the bond and proof to show such training costs. Anyway, to start with, you may send a letter reminding of the clause in the bond and calling on him to pay the amount, stating very categorically that you would be "constrained to take legal action if he does not pay the amount." If he does not respond, you can take the assistance of your lawyer and send a notice in a formal manner.

Once the notice is sent, he will certainly come to meet you, I am sure.

All the best.

Madhu.T.K

Dear Sir,

Today, I called him and asked for the settlement. He pretends to come in a day or two. If he comes, how will I handle the matter with him? What do I need to prepare, like papers, to deal further?

Regards,
Ranjeet

To start with, you have to review the terms of the bond and request the bond amount, stating that it was incurred due to his training. The matter will not be resolved in one sitting. He may take one or two opportunities, and it will resemble a negotiation. In that process, you also have to be somewhat liberal.

There is another scenario to consider. If instead of paying the bond amount, he proposes that he is willing to work with you, and his absence can be excused on humanitarian grounds, what will be your stance? Will your Board of Directors agree to reinstate him? Consider the possibilities.

Regards,
Madhu.T.K

Hi,

Can anyone please help with this? If a probationary employee has absconded from duty, what kind of procedure or letter do we need to provide?

Jyoti

Dear all,

Greetings!

I urgently require the format of a letter regarding the resignation of an apprentice for intimation to the Deputy Apprentice Advisor. Could you please attach the same?

Regards,
Ranjeet

Dear Ranjeet,

If an apprentice has discontinued his training, you need to inform the Apprentice Adviser/ Asst. Apprentice Adviser/ Training Officer, as the case may be. No specific format needs to be followed. Simply refer to the apprentice token number as available in the contract of apprentice training or the identity card issued to the apprentice by the Apprentice Adviser (if you have a copy of the same in your file) and formally inform that, "With reference to the contract of apprentice training cited above, we would like to inform you that (name of apprentice) has terminated the contract at his will after submitting his resignation. A copy of his resignation letter is enclosed herewith for your reference and record."

Regards, Madhu.T.K

Hi Ranjeet,

Company policies are framed in accordance with the law, and the law states that no one's services can be dispensed with without affording them an opportunity to be heard. On your part, you have already sent him letters (I assume not warnings, as a warning implies punishment, by issuing which you may condone his delinquency). Please send him another letter to his permanent address, clearly outlining the charges and informing him of the consequences, including the possibility of termination of services. Regardless of a reply, conduct an inquiry into the charges and impose the appropriate punishment, which in this case appears to be dismissal.

I.N. JHA

Dear Sir,

I have drafted a letter for your valuable inputs.

The Deputy Apprentice Adviser
Thursday, October 08, 2009
BTC Pusa Campus,
NEW DELHI-110012

Sub: Resignation of an Apprentice (Registration no. Jan 09/29)

Dear Sir,

This is to inform you that Mr. Haroon Rashid, Apprentice Registration no. Jan 09/29 dated 01/05/2009, has resigned from his training at the Taj Mahal Hotel as an Apprentice-Cook effective 07/10/2009.

This is for your information and necessary action.

For.......

Hi Jeeni,

Re: Termination of Apprentice

The letter should read as follows:

This is to inform you that, vide letter dated ....................., Mr...................., Regn No................. has expressed his inability to continue with the Apprenticeship training with us, for which he was engaged. As per clause........... of the Contract of Apprenticeship, we, on our part, terminate the contract with immediate effect, which may please be noted.

Thanking You.

Subject: Notification of Termination as Senior Employee to Government Department

Dear [Government Department Name],

I am writing to inform you, in letter format, of my recent termination by [Company Name]. As the senior most person in the company, it is with regret that I must communicate this news to the relevant authorities.

I kindly request guidance on any procedures or documentation required from my end in light of this termination. Your assistance in this matter would be greatly appreciated as I navigate this transition period.

Thank you for your attention to this matter.

Sincerely