Employee Left for China Without Notice: What Legal Steps Can I Take Now?

Dear Seniors, I am working as an HR Executive in a small IT company. On 21st August 2015, an employee mailed a resignation stating he could not continue with the company as he has got some other good opportunity and he cannot serve the notice period (2 months). I strictly told him that he has to serve the notice period; otherwise, the company is not going to provide him with any relieving letter or experience letter. Then, on the same day, he asked me to withdraw his resignation.

On 26th August 2015, he applied for 4 days leave, i.e., 4th Sep, 5th Sep, 6th Sep, and 7th Sep (8th and 9th were Sat & Sun). Now, the 7th of every month is our salary day. On 9th Sep 2015, after getting his salary credited, he again mailed me a resignation letter stating he cannot continue because of some personal reasons and mentioned his last day of working will be 10th Sep 2015. However, he did not turn up on 10th Sep either. Later, through some references and social media, I got to know that he has moved to China and is working with some other company.

Now, please let me know what legal actions can be taken against him since some intellectual and physical assets of the company are also lying with him.

I really need your help.

From the HR standpoint, the employee has absconded from his duties and is in possession of company assets. While for absconding, you may generate proof from the attendance records, what about the assets that your company has provided to him? Do you have material evidence of the possession of the assets?

Send a notice for his absence from duties to his last known address. If he does not respond, order a domestic enquiry and send him a notice to depose before the enquiry. If he still does not respond, then conduct a separate enquiry and find out what company-owned property he has purloined. If the employee has not returned the valuable property, then you may lodge a police complaint.

In the meanwhile, through social media, find out where he works. If you wish to teach him a real lesson, then send a copy of the notices to his official address in China. Send a separate letter to his MD stating that he has separated from the company without fulfilling the terms of employment. If you lodge a police complaint, then you may provide this address to the police authorities as well. They may pursue the case through the Indian embassy or consulate in China.

Thanks,

Dinesh Divekar

Very comprehensive and compact suggestions were given by Mr. Divesh Divekar. Steps need to be initiated against such errant officers who are willingly dreaming that no actions will happen.

I work as an expatriate HR head and frequently interact with embassies in several countries where we operate. Going to the embassy is not a solution, as they will not address the issue unless there is a court judgment. There is no extradition treaty between India and China, so there is little the embassy can do. At most, they might send a letter to the concerned company, but it would likely be ignored. Writing directly to the employer may or may not be effective because, in many cases for positions abroad, the employer may have indicated that no relieving order is necessary. This is because, for expatriate positions to be filled, a vacancy must first arise, a quota must be obtained from the government, and the candidate's profile must be sent to the immigration department for work permit clearance. These processes are time-consuming, and the employer may urgently need the skills. Therefore, many companies do not prioritize relieving letters or background verification, as long as the expatriate is competent.

Background Verification in ASEAN, Middle East, and Africa

Have you ever received a letter for background verification from any of the ASEAN countries, the Middle East, or Africa? No, not unless they are top-class multinationals with robust systems, processes, and strong ethics.

Practical Steps to Address the Issue

Now the issue is, what can you practically do about it? You may first email him asking for the return of the company assets. If there is a record of him receiving the assets, he might send them through someone. Also, send a letter by registered post with acknowledgment due to his last known residence. If you do not have records, you will have to wait for his response stating that he will return the assets, which would serve as evidence. If he does not respond or denies your mail, there is not much you can do. If he states that he will hand it over within a timeframe, you could set a deadline. If he does not comply, and if you have evidence, file a case for recovery against him. A First Information Report (FIR) will not lead to a conclusive decision because the police report will only state that he is not at his last known address. No action can be taken based solely on an FIR, and the police will not act unless they hear his side of the story as well.

However, if you file a case of recovery, it is more likely that the judgment would be delivered ex parte. With the judgment in hand, you can ask the police to execute it. The police will then issue an alert to the immigration authorities. If he enters India, the alert will ensure that he is apprehended at immigration. He would likely settle the notice period salary and return the assets to resolve the case quickly, as the alert will remain until the case is resolved. Removing an alert is a lengthy process in India and would serve as a punishment in itself because his employer will not wait for him indefinitely. Remember that the company assets in question must have significant value. Just listing items like a laptop, stapler, etc., will not yield results. If it is a laptop, it should contain classified company data, exclusive software, etc. Be prepared to anticipate and act against any attempts to deceive, as illustrated by a past case where an employee claimed his laptop was lost while being abroad and proposed to pay the depreciated value. A deceptive individual will be outwitted easily.

A Lesson from the Past

About 25 years ago, I worked for one of the largest FMCG MNCs in Bangalore. I was sent to XLRI to conduct the first round of interviews during campus placements. The Head of HR was arriving the next day for the final interview. My Head of HR instructed me to socialize informally with the students and identify the biggest truants in the batch. To my surprise, he selected all of them. Today, they are all heading HR departments in some of the best corporations worldwide.

Hope this information helps.

Regards

The anonymous member is right—no point going to embassies for such issues unless it goes through the MEA, and you can surmise the practicality of this step for such an issue. The other steps suggested by Dinesh Divekar should be able to stop this guy in his tracks. Obviously, he calculated his moves well by taking back the resignation and waiting for his salary.

You can also post your messages on his social media pages as well as track his followers and post updates—the basic idea being to put him in a spot openly. However, take legal advice before going forward, in case you wish to. The fact that he has company material can be leveraged very well legally.

You haven't mentioned this guy's role/position. Since you say he has two Android phones, I presume he is in some client-facing role. If true, suggest checking if any damage has been done on that front too.

Regards,
TS

You should send a message to him, even through social media, asking him to return company property. Such employees are better off working elsewhere. If he returns the company property in good condition, forget about him and let him enjoy his time in China. He will get caught in his own smart acts. The company is better off without employees who are not faithful to the organization. Whatever the matter may be, analyze where the company has gone wrong in dealing with these kinds of employees. He smartly applied for leave just before his salary day and, after getting his salary, exited. What the anonymous member has written makes good sense. Since the appreciate button is missing, I have written my appreciation here.