How Should We Handle an Employee's Malpractice and Refusal to Honor a Bond? Seeking Legal Advice

Hi friends, I am new to the profession. Please kindly guide me by answering my question.

Employee Malpractice and Legal Consequences

One of our employees in our organization was caught for malpractice. His role in our organization is under bond for 5 years. He completed 1 year of experience with us. Two months ago, he took a long leave. After our frequent calls, he replied that he was injured in an accident. We asked him to submit a medical certificate. A month later, he submitted a medical certificate stating that a person must take 1 month of bed rest before being able to rejoin the organization. The certificate was dated 01/10/2012. However, after another month passed, he did not return. When asked, he submitted the same medical certificate with a manipulated date of 21/12/2012. His malpractice was finally uncovered after our inquiry, and he admitted to it.

The reason he gave for not returning is that he is unwilling to rejoin and also unwilling to pay the bond amount. His attitude during our conversations has been extremely rude. When we mentioned providing an experience certificate, he arrogantly stated that he could create one using our organization letterhead.

The issue lies in the fact that we do not collect original certificates but rely on copies provided by the individuals themselves.

His Malpractices Include:

- Changing the date on the medical certificate by himself
- Unauthorized possession of our organization's letterhead
- Intending to forge his own experience certificate

Individuals like him should face consequences for their actions. I am seeking advice on the legal terms for punishing an employee for malpractice. Please share your opinion.

Regards,
Selva

To go legal, you need to have PROOFS. More than focusing on his medical certificates, suggest putting your IMMEDIATE focus on him having your Company Letterheads [the medical certificates, Bond can come later]. That will become criminal--since he CAN misuse the letterheads for any other purposes also--could be MORE SINISTER [not just to type-in his experience certificate].

Suggest calling him politely for a discussion [as if you are willing to negotiate] & take a video of the discussions for evidence. Get him to admit--ON CAMERA--whatever he told you so far informally.

Also, suggest involving your Company Legal counsel BEFORE your discussions--he/she will know what evidence is admissible with Police/Courts. Your employee's offenses COULD include counterfeiting/forging, theft of company property & more--IF you can collect the evidence [obviously you won't get any chance IF he gets to know your plans].

All the Best.

Regards,
TS

I just wanted to inform you that the organization is exploring the possibility of filing a criminal complaint as the letterheads of the company are missing. This could lead to a likelihood of misuse.

Regards,
Prakash

If the company takes the stand you suggest, the guy will outright deny having said, "he has letterheads." It will be, in my opinion, a very costly chance the company would take.

Regards,
TS

Addressing Employee Malpractice: Legal Steps and Precautions

This is a serious matter and should not be let off just like that. Considering the mischief potential of an estranged employee using the company letterhead, a police complaint is necessary. Before taking this step, as suggested by TS and in consultation with your advocate, you can develop a strategy to strengthen your case.

In any case, I recommend issuing a press advertisement disowning the employee and cautioning the general public. Additionally, explore ways to enforce the bond. There are several practical steps available to enforce the bond, and your advocate can assist with this. It is important that this situation does not set a precedent for others.

Regards,
KK

There is no need to panic. I have gone through views shared by various members. Everyone wants to take up this issue seriously, wherein an employee is trying to play a safe game. He may be a wise guy or a BIG FOOL. By the way, I have expertise in COUNSELLING EMPLOYEES & STUDENTS. I am fond of studying HUMAN PSYCHOLOGY OF BEHAVIOR & ATTITUDE. Most of the time, I have succeeded in making them understand the GROUND REALITY as many were confused, misled, and that made them take IMMATURE DECISIONS.

Understanding the Employee's Perspective

Before posting your query, did you ever try to find out why he is not interested in continuing with your firm? What is the major reason that made him take a concrete decision? How healthy is the relationship between him and his superior? On a scale of 5, what is his superior's rating for his attitude & behavior during his 1-year service period? If he is working in a team, how healthy is the relationship between him and his team members? Did you try to collect feedback about his activities from his colleagues? Are there any complaints registered against him during his service period? How did he succeed in securing your company letterhead?

The Importance of Counselling Skills in HR

Most HR professionals lack COUNSELLING SKILLS. They can't even COACH employees in the RIGHT DIRECTION. You need to understand the psychology of the employee before taking action against him. Such cases are common in organizations. Try to solve the puzzle rather than making decisions that may spoil his career.

Feel free to call me as I reside in Chennai.

With profound regards

I just wanted to know what his role was in your organization, as he had to sign a bond of 5 years. I fully agree that he did wrong by cheating the organization and taking all of you for a ride. However, it is also inappropriate to make a person sign a bond for 5 years if his role is not crucial.

As Mr. KHADIR suggested, did you speak to him and try to find out why he is behaving in this manner? There will definitely be some problem; it can be official or even personal. I know of a case where a person used to behave rudely with new recruits as they had signed the bond, so I request you to check all the possibilities.

Mr. kknair, I just want you to know that there are many who take the company letterhead and misuse it, but for that, you don't go and make a police complaint. I also don't agree with a press advertisement; sorry, I don't think he has killed anyone. Please remember he is not so smart, so he revealed that he has taken the letterhead; otherwise, he would have kept quiet and misused it.

Nowadays, most organizations go for employee verification. At that time, you could reveal the details to the concerned person, but once again, I would like to request you to have a word with him and try to sort the matter. In case even then you have issues, then sack him; why would you want to keep someone like him in the organization?

Regards,
Anita

Selva, there are lots of issues here. First, get that letterhead back. Second, review your procedures. How did he end up with the letterhead? Even if he is authorized to have it, how did he take it away? Third, if he doesn't want to stay, you can't keep him. He is an unwilling worker. Review your HR practices; they seem to be out of sync with the employee aspirations. For legal action, ask your company legal counsel.

Experience with Employees During Bond Period

I want to share my experience with you members. During the bond period, if an employee comes across a decent offer, he or she will try their best to secure that job because they find it lucrative. At times, such employees have a very good understanding with the new company's HR. They both come to a mutual understanding, draft a plan which is later executed just to get rid of their current organization. The employee may change their attitude, behave rudely, downgrade their performance drastically, and make their superior angry or irritated, leading to the termination of their service. This behavior is only found in the IT industry.

With profound regards.

It's very surprising that your company asks for a 5-year bond, especially without anything in return. The practice of a 5-year bond itself is questionable under the law and not enforceable in any court of law. As you told me that you are new in this field, please understand that all these contracts are just for the mental satisfaction of creating pressure on new employees; otherwise, most of the agreements/contracts are unenforceable. So, forget the issue of the bond unless you have any security like his original certificates, etc.

Letterhead Concerns

Now, coming to the letterhead, in this age of scanning and digital printing, you can even create the letterhead or stamp of the President of any country. So, don't worry if he uses this letterhead anywhere for some malicious purpose; your company can sue him in a court of law. Otherwise, what is the use of such an employee in the company? Suppose you force him to rejoin, and then if he starts harming the company from the inside, what can you do, as all the actions or minor negligence can't be taken to court of law? Or if you wish to do so, then your company management will just spend most of the time on these tiny matters instead of doing any business.

Employee-Friendly Policies

On the other hand, any company with employee-friendly policies always grows, and companies with difficult exit policies have low productivity as many of their employees are just working as bonded labor without any real interest in work. So, it's always best to let employees feel at home, concentrate on work, and perform their best while they are in the company. I agree with Mr. Khadir; if an employee has decided to leave, he too can create such a nuisance that you will feel happy to sack him by paying him the notice period salary too.

Legal Advice

One most important point or free advice to you, never forget, once any matter reaches the labor court, it's very difficult for any company to come out unharmed, as there may be only 1% of Indian companies that follow labor laws in total and maintain all the records and follow procedures as required under labor laws. Being an advocate, I know most of the time courts are generous to employees unless he has committed some financial embezzlement. So, please be careful and never push any employee to that extent that he reaches the chambers of any advocate.

Regards

Employer-Employee Relationship and Trust

In service jurisprudence, the employer-employee relationship is based on trust. When trust is lost, the relationship is lost. Loss of confidence in the employee is a serious allegation and may warrant HR counseling and disciplinary actions immediately.

Disciplinary Actions for Misconduct

Disciplinary action against an employee can be initiated for misconduct under service rules, which is a violation of any standing order or conduct rules framed by the organization.

Criminal Misconduct Charges

A more serious form of charge is criminal misconduct, such as criminal breach of trust, forgery with documents, or offenses involving moral turpitude, which are cited in this case.

If there is no financial loss to the organization, the employer generally does not go for initiating criminal action against the delinquent employee but rather opts for HR counseling first. After HR counseling, if no perceptible changes in the employee's behavior are visible, disciplinary action is taken to address the misconduct.

Deciding Between Disciplinary Action and Criminal Charges

The employer is the best judge to decide whether to proceed with disciplinary action or initiate a criminal charge for offenses involving moral turpitude. Establishing a criminal charge in the court of law is very difficult as a superior quality of evidence is required to prove the charge conclusively for a conviction under the Indian Penal Code. However, in departmental proceedings, a preponderance of probability is sufficient to punish an employee.

That is why in cases of infractions or petty offenses, the employer should opt-out of charging an employee for criminal misconduct and instead may proceed with disciplinary proceedings for misconduct in employment if HR counseling fails. The ground reality should be judged by the employer.

Regards,

S.G. Bhattacharjee

Guwahati

From the legal jurisprudence point of view, your stand might not be viable in the court of law.

Nature of Employment Bond

1. What is the nature of your employment bond? After 5 years, one can file a complaint under bonded labor if you don't provide justification for the 5-year bond.

Proving Employment

2. On the letterhead, how are you going to prove that he didn’t work for you? If he did, what reasons would you assume for refusing to acknowledge his employment with you?

Legal Advice

3. Finally, if I am his counsel, I would recommend him to use the letter without a signature mapping for the exact days he worked.

I can understand your anger with him due to the rude behavior, but it would be unwise to sue someone for a 5-year bond or a lost letterhead.

Regards,