Notice Period OR Salary In Lieu

Dear All,
Iam working in Software Company we have an employee who left company without Notice period serving and its clearly written in his Appointment Letter either he have to serve 3 months notice or Salary in lieu . We even informed him about terms but he told he is not ready to serve notice period or even he will not give any salary in lieu for that.
a. Please Inform me can we send him Termination Letter ?
OR
b. We can go with Absconding letter?
Please inform me Legal Procedure for such Situation .

You have mentioned "the employee has left"
has he absconded?
or Has he given his resignation letter and stopped coming?
He has not given letter but not coming
Clear case of absconding. Send letters. Mention in the letter that he has to report on or before a specific date failing which it will be deemed that he has left the orhanisation without notice. Then insist on Notice Pay. By doing this, you can claim the same through courts as well
He has given his resignation but therafter stopped coming
Inform him that he has given his resignation but stopped coming. Quote the terms of appointment letter regarding Notice period and ask him to deposit Mention that legal proceedings will be initiated for recovery of Notice pay.If he does not pay, you can file a recovery suit.
By issuing termination letter or by issuing abndonment letter, you lose your right for recovery of Notice Pay
This is the best method legally, in my view
Sivasankaran

Dear T Sivasankaran,
He has given his resignation but thereafter stopped coming.
We Informed him about the terms of appointment letter and even told to pay the notice period but he told us he don't want any certificate from company so he will not serve the notice period .
Can you explain me about recovery suit Procedure?
Can there will be any other Letter .
because management told me we dont want to recovery his Notice period by any court case.

If you do not want to go to court, then leave it. Mark him absent. Work out his dues. Send a letter to him indicating the follwoing
1. Amount due to you from the company ( Include salary if any. Leave encashment, etc)
2. Amount due from him Calculate the Notice period amount
Infor that he has to make the payment to the company as indicated If he pays, it is good. If he does not pay, just keep sending reminders every month for next six months If you are lucky he may pay. If he does not pay, it will be forgotten over six months
Sivasankaran

Dear Sivashankaran,
One of my friend said that bond is legally not valid in india.is it correct or not.if it correct why all the companies are going for bong may i know the reason behind it.
Thanks in advance

Dear Mr Ajaykumar

There is a misconception amongst some people that Bonds are not valid in India. It is not ther right position.

Let me not use the word Bond. Let us use a word Contract. Contracts are governed by Indian Contracts Act

If there is a Service Contract which has clauses which are not one sided, then such contracts are valid.

Eg 1

In case of resignation, if the clause says that the employee needs to serve for Five years and in case if he does not servce for years, certain amount has to be paid. If they also incorporate similar clause saying if the employer asks the employee to leave, then this clause is legally binding on both sides. The mistake committed by people is that such a clause is always one sided hence courts will rule this clause out.

Eg 2

Training cost. There is a misconception that only Training cost can be recovered. If the cost is arrived at properly in advnce specifying the training cost and opportunity lost cost, which should be reasonable, then the amount is recoverable

I can give more examples. I also handled a Court case in 1990s much against my wishes, as HR Head of a Company. Much to my surprise, Honourable Judge, asked the Employee in the Court...."Did you sign the Contract knowingly?" he siad "yes" The Judge then asked him "Then why not pay the Compensation? Why do you say the Contract is one sided?" Then he turned to my siad and asked " I will rule that the employee will pay the Compensation However, can you give him some concession?" Directly he asked " Can you freduce the compensation to 25%" I said "yes" The point I learned here is that Judges also try to understand the intentions of the Employees.

However, Bonds are not valid in Law in India is wrong. One sided contracts throuhout the world are invalid so as in India.

Then why many Managements insist on One sided contract is your next question.

Many think that such clauses will act as threat for employees from resigning which is not true. In places where I have worked, I could change such one sided clauses

Service Contracts which are normally referred to as Bonds are valid if they are reasonable and transparent and Companies should use this for specific skills and not for all skills.

T Sivasankaran

Dear Sneha,
I agree with Mr Sivsankaran regarding the bonds. However, sometimes the bond loses the significance if the employee jumps the bond and the employer finds cumbersome to spend time and money on the issue.
Regards
S.K.Johri

Hi Sneha Nair, Beena and Nishant,
I fully agree with you and Mr. Shivashankaran has given a very correct and practical solution. We have a real knowledgeable guide in Mr. Shiavshankaran, who I am thanking through this posting.

M.J. SUBRAMANYAM, BANGALORE

Dear Friends,
just need following clarification, suppose a employee who has to give 3 months notice period as per the offer letter, and who would be confirmed within 6 month from the joining by the Company, but the Company has not given the confirmation within the time and the employee joined another company serving 1 month notice after nine month of his joining.
Now employee is claiming the leave encasement from the Company stating that he has completed the Probation period of six month and eligible for LE, the cofirmation letter was to be given by the Company, its there fault if they dont give.
Company said Employee has to serve 3 month notice and hence Company will deduct 2 month salary (since E'ee has given one month notice).
Now who is right whether the E'ee who is asking for LE or the Company who deducting the 2 months salary.
Regards
Sachin Mishra

Dear Mr Mishra
According to you, the offer letter is given with a clause for three month's notice. Does it specify that this clause will be applicable only on confirmation?
1. If the letter does not specify that the notice period is applicable only after
Confirmation
In such an event, the Notice period clause is applicable even during probation
Period. However, you also need to examine the clause very carefully
2. If the letter specifies that the Notice Period is applicable only after
Confirmation
In such an event, the Notice Period is applicable only after a letter of
confirmation is issued. Since there is no letter of confirmation, Management
can not demand three month's notice period.
Whether an enployee is confirmed or on probation. on resignation, encashment of eanred leave must be given by the Management. If any amount is due from the employee by way of notice period, the same can be adjusted.
T sivasankaran