Legal Clarification on Absconding Employee, Contract Labour Engagement & Leave Entitlement Amendment
Hello Professional HR & Business Veterans, please find attached an alarming whistle-blowing watchdog entrepreneurial lesson on employee relations. This includes legal clarification on absconding employees, contract labour engagement, and leave entitlement amendments.
Regards,
From India, Mumbai
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539Hello Professional HR & Business Veterans, please find attached an alarming whistle-blowing watchdog entrepreneurial lesson on employee relations. This includes legal clarification on absconding employees, contract labour engagement, and leave entitlement amendments.
Regards,
From India, Mumbai
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Can you please let me know what is the procedure to take legal action on an employee who has breached the contract and absconded with no call no show ?
From India, Rajkot
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From India, Rajkot
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Handling Absconding or Abandonment of Services
Absconding or abandonment of services by an employee in violation of the terms of the contract of employment is misconduct that invokes disciplinary action and may lead to dismissal if found guilty, as per the Model Standing Orders given in Schedule I of the Standing Orders Act, 1946. However, to avoid unnecessary litigation in the future and to fully observe the legal formalities in this connection, please take the following steps one by one:
1. Send a notice to the employee at their last-known address, asking them to report for duty within a specified date together with an explanation for their unauthorized absence. You may also ask them to surrender the Company's property, if any, in their possession at the time of their absence.
2. If there is no response even after receipt or in the case of non-service of your notice, frame charges in definitive language under the relevant clause of your Standing Orders and publish the same in a newspaper.
3. If the reply received is not satisfactory or if there is no response, arrange for a domestic enquiry by duly appointing an Enquiry Officer.
4. The enquiry should be conducted by sufficiently informing the delinquent about the place, date, and time of the same.
5. In case of non-participation, the Enquiry Officer would set them ex parte and submit their findings to you.
6. After reviewing the report of the Enquiry Officer, you may conclude that the charges leveled stand proved and communicate the same together with the proposed punishment, a copy of the Enquiry Officer's report, and a second show-cause notice.
7. After the expiry of the time limit fixed in the final notice, you can terminate their services by an order of dismissal.
The above exercise may seem cumbersome and time-consuming, but there is no other way.
Regards
From India, Salem
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Absconding or abandonment of services by an employee in violation of the terms of the contract of employment is misconduct that invokes disciplinary action and may lead to dismissal if found guilty, as per the Model Standing Orders given in Schedule I of the Standing Orders Act, 1946. However, to avoid unnecessary litigation in the future and to fully observe the legal formalities in this connection, please take the following steps one by one:
1. Send a notice to the employee at their last-known address, asking them to report for duty within a specified date together with an explanation for their unauthorized absence. You may also ask them to surrender the Company's property, if any, in their possession at the time of their absence.
2. If there is no response even after receipt or in the case of non-service of your notice, frame charges in definitive language under the relevant clause of your Standing Orders and publish the same in a newspaper.
3. If the reply received is not satisfactory or if there is no response, arrange for a domestic enquiry by duly appointing an Enquiry Officer.
4. The enquiry should be conducted by sufficiently informing the delinquent about the place, date, and time of the same.
5. In case of non-participation, the Enquiry Officer would set them ex parte and submit their findings to you.
6. After reviewing the report of the Enquiry Officer, you may conclude that the charges leveled stand proved and communicate the same together with the proposed punishment, a copy of the Enquiry Officer's report, and a second show-cause notice.
7. After the expiry of the time limit fixed in the final notice, you can terminate their services by an order of dismissal.
The above exercise may seem cumbersome and time-consuming, but there is no other way.
Regards
From India, Salem
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(Fact Checked)-The user's reply contains accurate information regarding the process to follow in the case of an absconding employee as per the Model Standing Orders Act, 1946. (1 Acknowledge point)
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Dear Dilip ji, Thank you for your posting. I read the article "Legal Q & A" by Shri KV Singh. I do not agree with the view of Shri KV Singh on Absconding / Abandoning / NCNS to the extent that the employer may treat the employment of the employee under question as terminated from the date the employee ceased to come to work.
I fully agree with the posting on this subject by Shri Umakanthan ji as mentioned above. I have seen cases in which Absconding / Abandoning / NCNS employees claim employment even after 2 to 3 years.
Legal Perspective on Absconding and Abandonment
Generally, employers take the view that if an employee is Absconding / Abandoning / NCNS for a long period, the employee is deemed to have abandoned their employment. The High Court in Mumbai, in Mahamadsha Patel vs. Mastanbaug Consumers' co-op. Wholesale and Retail Stores reported in 1998 (79) FLR p 874, held that in such cases, the legal position is almost settled that even in the case of abandonment of service by an employee, the employer must give notice to the employee to resume duties. If the employee does not return despite such notice, the employer should conduct an inquiry on that basis and then make an appropriate termination decision.
Other members are requested to share their comments.
From India, Mumbai
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I fully agree with the posting on this subject by Shri Umakanthan ji as mentioned above. I have seen cases in which Absconding / Abandoning / NCNS employees claim employment even after 2 to 3 years.
Legal Perspective on Absconding and Abandonment
Generally, employers take the view that if an employee is Absconding / Abandoning / NCNS for a long period, the employee is deemed to have abandoned their employment. The High Court in Mumbai, in Mahamadsha Patel vs. Mastanbaug Consumers' co-op. Wholesale and Retail Stores reported in 1998 (79) FLR p 874, held that in such cases, the legal position is almost settled that even in the case of abandonment of service by an employee, the employer must give notice to the employee to resume duties. If the employee does not return despite such notice, the employer should conduct an inquiry on that basis and then make an appropriate termination decision.
Other members are requested to share their comments.
From India, Mumbai
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(Fact Checked)-[The user's reply contains accurate information regarding the legal position on absconding employees and the employer's obligations in such cases. The reference to the HC Mumbai case of Mahamadsha Patel vs. Mastanbaug Consumers' Co-op. Wholesale and Retail Stores is relevant and supports the user's viewpoint.] (1 Acknowledge point)
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Understanding Resignation Principles
I need your help in understanding the principle of resignation. If I am not wrong, as per any establishment policy, it is either a 1-month notice or 3 months on either side, or 1-month pay or 3 months' pay in lieu of not serving the terms of 1 month or 3 months.
My query is, does the employer insist staff work for 1 month or 3 months as per policy without accepting the salary in lieu of not serving the terms?
Any citation of court in the above matter is welcome. Kindly revert with your valuable advice as it pertains to my son's case.
In my son's case, the management is not accepting the resignation letter and giving the acknowledgment receipt. Further, in his appointment letter, it is mentioned that on confirmation, he needs to give 3 months' notice or pay in lieu of the same.
The management has changed the policy by intimating through email that from 1st April '13, notice pay in lieu of a 3-month notice has been stopped.
Can the management resort to such practice by intimating through mail? Which clause prevails, the appointment letter clause, or the email communication?
What remedy is available if the Branch Head is not giving the acknowledgment receipt?
For your information, there is no union functioning in the establishment.
Kindly revert with your valuable advice.
Regards,
Azim Charania
From India, Mumbai
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I need your help in understanding the principle of resignation. If I am not wrong, as per any establishment policy, it is either a 1-month notice or 3 months on either side, or 1-month pay or 3 months' pay in lieu of not serving the terms of 1 month or 3 months.
My query is, does the employer insist staff work for 1 month or 3 months as per policy without accepting the salary in lieu of not serving the terms?
Any citation of court in the above matter is welcome. Kindly revert with your valuable advice as it pertains to my son's case.
In my son's case, the management is not accepting the resignation letter and giving the acknowledgment receipt. Further, in his appointment letter, it is mentioned that on confirmation, he needs to give 3 months' notice or pay in lieu of the same.
The management has changed the policy by intimating through email that from 1st April '13, notice pay in lieu of a 3-month notice has been stopped.
Can the management resort to such practice by intimating through mail? Which clause prevails, the appointment letter clause, or the email communication?
What remedy is available if the Branch Head is not giving the acknowledgment receipt?
For your information, there is no union functioning in the establishment.
Kindly revert with your valuable advice.
Regards,
Azim Charania
From India, Mumbai
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Dear Umakanthan.M,
Further to the thread, more clarification is provided herein below.
Resignation Details
My son joined the establishment on 20th August 2012 and tendered the hard copy of his resignation on 11th July 2013 in writing to the Branch Head. He has, till date, not received acknowledgment on the copy that the resignation is received. Unfortunately, my son has not mentioned the last working day but has requested to be relieved "as soon as possible," as he has received a job offer letter from a multinational company based in the UAE, asking him to join by 1st August 2013.
Notice Period Clause
The present company's appointment letter states that on confirmation, there is a 3-month notice on either side or, in lieu of the same, 3-month pay.
Policy Announcement
Regarding the resignation letter, the Branch Head has verbally informed my son that the 3-month notice in lieu of the notice practice has been stopped from 1st April 2013, and he is required to work for the full 3 months with no alternative. As for the policy announcement, it was generally made before my son submitted his resignation letter via email from the VP of the HR department and not at this stage.
Willingness to Settle Dues
My son does not wish to serve the complete notice period but is willing to settle the dues in lieu of the notice period.
Queries on Policy Implementation
Can management implement this practice by notifying through email about the cessation of the practice in lieu of the notice period? Which clause prevails, the appointment letter clause, or the email announcement? What recourse is available if the Branch Head does not provide an acknowledgment receipt?
Please respond promptly as 1st August 2013 is fast approaching.
Potential Employer Actions
If the Branch Head refuses to provide the acknowledgment copy and my son does not fulfill the terms of the notice period as per the appointment letter on either side, what actions can the employer consider against my son? As mentioned in the previous email, there is no functioning union in the present establishment.
The UAE company does not require a relieving letter from the current employer.
Regards,
Azim Charania
From India, Mumbai
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Further to the thread, more clarification is provided herein below.
Resignation Details
My son joined the establishment on 20th August 2012 and tendered the hard copy of his resignation on 11th July 2013 in writing to the Branch Head. He has, till date, not received acknowledgment on the copy that the resignation is received. Unfortunately, my son has not mentioned the last working day but has requested to be relieved "as soon as possible," as he has received a job offer letter from a multinational company based in the UAE, asking him to join by 1st August 2013.
Notice Period Clause
The present company's appointment letter states that on confirmation, there is a 3-month notice on either side or, in lieu of the same, 3-month pay.
Policy Announcement
Regarding the resignation letter, the Branch Head has verbally informed my son that the 3-month notice in lieu of the notice practice has been stopped from 1st April 2013, and he is required to work for the full 3 months with no alternative. As for the policy announcement, it was generally made before my son submitted his resignation letter via email from the VP of the HR department and not at this stage.
Willingness to Settle Dues
My son does not wish to serve the complete notice period but is willing to settle the dues in lieu of the notice period.
Queries on Policy Implementation
Can management implement this practice by notifying through email about the cessation of the practice in lieu of the notice period? Which clause prevails, the appointment letter clause, or the email announcement? What recourse is available if the Branch Head does not provide an acknowledgment receipt?
Please respond promptly as 1st August 2013 is fast approaching.
Potential Employer Actions
If the Branch Head refuses to provide the acknowledgment copy and my son does not fulfill the terms of the notice period as per the appointment letter on either side, what actions can the employer consider against my son? As mentioned in the previous email, there is no functioning union in the present establishment.
The UAE company does not require a relieving letter from the current employer.
Regards,
Azim Charania
From India, Mumbai
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Legal Clarification on Absconding & Contract Labour.pdf
LABOUR CONTRACT AGREEMENT.doc
CiteHR.AI
(Fact Checked)-The procedure to take legal action on an employee who has breached the contract and absconded should involve following due process, which may include sending formal communications and seeking legal advice before taking any action. (1 Acknowledge point)