In absconding case we require your advice.
Employee is absconding from organisation so company (HR) send him first notice letter but employee do not respond to letter. After this HR sends him 2nd letter and when no respond from employee then Company terminate employee marking reason as absconding and send termination letter with Notice period recovery to employee.
This time employee responds to letter and clear his notice period dues and ask for reliving letter.
(Assuming – There is clause in appointment letter which says if either party wants to end contract then they have to serve 1 month notice or salary in lieu. There is no issue in notice period clause)
Now questions are following:
1) Is it legal and right for company to ask for recovery of notice period in absconding cases? Please provide reason.
2) In above case after clearing notice period dues, Is employee entitled for reliving letter? Why?
3) How absconding termination is different from other terminations (from notice period angle)
From India, Hyderabad
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24Employee is absconding from organisation so company (HR) send him first notice letter but employee do not respond to letter. After this HR sends him 2nd letter and when no respond from employee then Company terminate employee marking reason as absconding and send termination letter with Notice period recovery to employee.
This time employee responds to letter and clear his notice period dues and ask for reliving letter.
(Assuming – There is clause in appointment letter which says if either party wants to end contract then they have to serve 1 month notice or salary in lieu. There is no issue in notice period clause)
Now questions are following:
1) Is it legal and right for company to ask for recovery of notice period in absconding cases? Please provide reason.
2) In above case after clearing notice period dues, Is employee entitled for reliving letter? Why?
3) How absconding termination is different from other terminations (from notice period angle)
From India, Hyderabad
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Dear White Eagle,
Is it legal and right for a company to ask for the recovery of the notice period in absconding cases? Please provide a reason.
As the clause has been mutually accepted, the company has every right to recover the notice pay.
In the above case, after clearing notice period dues, is the employee entitled to a relieving letter? Why?
The clause states that one month's notice or salary in lieu of notice. The employee has paid the notice pay. So, it would be appropriate on your part to issue him a relieving letter.
How is absconding termination different from other terminations (from the notice period angle)?
Termination done by the employer is typically due to poor performance or misconduct warranting service termination. In absconding cases, this question does not arise as the only error committed by the employee is the failure to report for work. It is a cessation of service similar to resignation and cannot be deemed as termination.
If you view it as termination, then it will imply that you will be required to pay the notice pay instead of the employee, as the action is on your part and not the employee's. Therefore, it would be wise on your part to receive the notice pay and issue him a relieving letter.
Trust the matter is clarified.
M.V. KANNAN
From India, Madras
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Is it legal and right for a company to ask for the recovery of the notice period in absconding cases? Please provide a reason.
As the clause has been mutually accepted, the company has every right to recover the notice pay.
In the above case, after clearing notice period dues, is the employee entitled to a relieving letter? Why?
The clause states that one month's notice or salary in lieu of notice. The employee has paid the notice pay. So, it would be appropriate on your part to issue him a relieving letter.
How is absconding termination different from other terminations (from the notice period angle)?
Termination done by the employer is typically due to poor performance or misconduct warranting service termination. In absconding cases, this question does not arise as the only error committed by the employee is the failure to report for work. It is a cessation of service similar to resignation and cannot be deemed as termination.
If you view it as termination, then it will imply that you will be required to pay the notice pay instead of the employee, as the action is on your part and not the employee's. Therefore, it would be wise on your part to receive the notice pay and issue him a relieving letter.
Trust the matter is clarified.
M.V. KANNAN
From India, Madras
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Thanks Kannan, Is there any SC/HC judgement which says that When Absconding employee clear his dues then organisation have to give him reliving letter.
From India, Hyderabad
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From India, Hyderabad
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My dear White Eagle,
I have gone through the discussions, and I find the responses fair and appropriate. Now, I would like to know your views on the following questions:
Why are you insisting on a SC/HC judgment just to provide a relieving letter?
Don't you think it is fair enough once the employee has cleared all the dues?
Do we need SC/HC judgments for everything in life? Do you need any SC/HC judgments to post your queries in this forum? Well, I think it is ridiculous to demand judgments for doing every right thing, no! What do you say? (See my last question.)
An employer is expected to be fair and benevolent to his ex-employee and is not expected to display any animosity or vengeance.
Warm regards.
From India, Delhi
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I have gone through the discussions, and I find the responses fair and appropriate. Now, I would like to know your views on the following questions:
Why are you insisting on a SC/HC judgment just to provide a relieving letter?
Don't you think it is fair enough once the employee has cleared all the dues?
Do we need SC/HC judgments for everything in life? Do you need any SC/HC judgments to post your queries in this forum? Well, I think it is ridiculous to demand judgments for doing every right thing, no! What do you say? (See my last question.)
An employer is expected to be fair and benevolent to his ex-employee and is not expected to display any animosity or vengeance.
Warm regards.
From India, Delhi
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Dear Raj, You have put is very nicely. I fully agree with you. In today’s scenario ( nationally ) it seems that we require SC’s permission even to to take a leak!!!. Best Regards, Vasant
From India, Mumbai
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From India, Mumbai
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Hi,
In managerial functions, there is a need to use our own brain rather than trying to walk only after getting hold of someone else's finger, like a young baby.
We must not stop performing our duties and responsibilities by constantly seeking Supreme Court or High Court judgments on every trivial matter.
Thanks Kannan,
Is there any Supreme Court/High Court judgment which states that when an absconding employee clears his dues, the organization must provide him with a relieving letter?
From India, Delhi
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In managerial functions, there is a need to use our own brain rather than trying to walk only after getting hold of someone else's finger, like a young baby.
We must not stop performing our duties and responsibilities by constantly seeking Supreme Court or High Court judgments on every trivial matter.
Thanks Kannan,
Is there any Supreme Court/High Court judgment which states that when an absconding employee clears his dues, the organization must provide him with a relieving letter?
From India, Delhi
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@White Eagle,
An organization stands on a flimsy ground if the employment offer provides an option of serving the notice period or paying off for the notice period (if the notice period is not a mandatory option and the pay-off option is at the discretion of the organization). If the company has accepted the notice dues from the employee, even if the employee does not serve his notice period, then the organization is obligated to provide him a relieving letter. If the company doesn't release the relieving letter after collecting the dues, then it amounts to cheating, and the company can be taken to court. Ideally, the company should contemplate if they have accepted the notice period due or other options before accepting the due amount in lieu.
From India, Madras
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An organization stands on a flimsy ground if the employment offer provides an option of serving the notice period or paying off for the notice period (if the notice period is not a mandatory option and the pay-off option is at the discretion of the organization). If the company has accepted the notice dues from the employee, even if the employee does not serve his notice period, then the organization is obligated to provide him a relieving letter. If the company doesn't release the relieving letter after collecting the dues, then it amounts to cheating, and the company can be taken to court. Ideally, the company should contemplate if they have accepted the notice period due or other options before accepting the due amount in lieu.
From India, Madras
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First of all I will thank the all respondents especially Raj for his fair and upfront revert(Keep it Up) Vasant your sense of humour is great. Friends we are living in country were law of land prevails but it is other thing that our labor laws are outdated. As an HR we have to be cautious and same time we should fair and reasonable. Most of my friends views are in favour of absconding employee but we should also think from company point of view and same time we have to keep in mind practical issues.
Absconding employee most of the time clear his dues after long time (around 1 year from absconding) when other organisation ask for reliving letter. In absconding cases after following process company issues voluntary absconding letter asap. For giving reliving letter Is it right to over right this letter?
If company will give reliving letter to absconding employees then don’t you think employees will take it as valid and acceptable practice which will lead to more absconding cases?
If there is no legal judgement on this then it is gray area and every organisation will make their own policies. Some organisation will accept recovery from absconding employee and give them reliving letter and others will not accept recovery and terminate employee and few (at least) will accept recovery but not give reliving letter and give some other letter.
It will lead to chaos which will not be beneficial for HR industry that’s why I am giving so much importance to Legal judgement. HR policies at broad level must be same all over the country and Industries.
I will again request for legal judgement and I think this forum is right place to start with.
From India, Hyderabad
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Absconding employee most of the time clear his dues after long time (around 1 year from absconding) when other organisation ask for reliving letter. In absconding cases after following process company issues voluntary absconding letter asap. For giving reliving letter Is it right to over right this letter?
If company will give reliving letter to absconding employees then don’t you think employees will take it as valid and acceptable practice which will lead to more absconding cases?
If there is no legal judgement on this then it is gray area and every organisation will make their own policies. Some organisation will accept recovery from absconding employee and give them reliving letter and others will not accept recovery and terminate employee and few (at least) will accept recovery but not give reliving letter and give some other letter.
It will lead to chaos which will not be beneficial for HR industry that’s why I am giving so much importance to Legal judgement. HR policies at broad level must be same all over the country and Industries.
I will again request for legal judgement and I think this forum is right place to start with.
From India, Hyderabad
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Hi all, just wanted to know from the person who started the discussion two things: whether you are terminating him or if a resignation letter is received from the absconding person. If you are terminating an employee, that amounts to punishment and seriously requires a domestic inquiry on the same. Have you given a proper and fair chance to the employee to prove his cause? Do your standing orders have a clause regarding unauthorized absence? Have you issued a charge sheet for the misconduct? These steps will prove to be helpful in properly handling the separation of the employee. If it is a resignation, then there is no complication.
From India, Mumbai
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From India, Mumbai
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Absence from Duty
The Bombay Shops and Establishments Act, Section 66 proviso (a), states that notice of termination is not required under Section 66 if an employee absents from service without notice in writing or without sufficient reasons for seven days or more, which can be construed as misconduct. Consequently, the severance of the employee for absence from duty must align with the aforementioned legal requirement.
A relieving letter signifies releasing the employee from the service of the employer. This can occur due to resignation, termination, or absconding. In cases of absconding where the employer opts not to issue a relieving letter, an experience certificate can be provided.
The recovery of notice pay is applicable for high-end jobs but not for positions where the salary is equal to or just above the minimum wage. Employers should anticipate such occurrences, as many absconders may have genuine reasons for their actions.
With Regards,
Advocates & Notaries & Legal Consultants [HR]
Email: rajanassociates@eth.net
-9025792684-9025792634
More at https://www.citehr.com/285737-legal-...#ixzz18a5NY4LA
From India, Bangalore
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The Bombay Shops and Establishments Act, Section 66 proviso (a), states that notice of termination is not required under Section 66 if an employee absents from service without notice in writing or without sufficient reasons for seven days or more, which can be construed as misconduct. Consequently, the severance of the employee for absence from duty must align with the aforementioned legal requirement.
A relieving letter signifies releasing the employee from the service of the employer. This can occur due to resignation, termination, or absconding. In cases of absconding where the employer opts not to issue a relieving letter, an experience certificate can be provided.
The recovery of notice pay is applicable for high-end jobs but not for positions where the salary is equal to or just above the minimum wage. Employers should anticipate such occurrences, as many absconders may have genuine reasons for their actions.
With Regards,
Advocates & Notaries & Legal Consultants [HR]
Email: rajanassociates@eth.net
-9025792684-9025792634
More at https://www.citehr.com/285737-legal-...#ixzz18a5NY4LA
From India, Bangalore
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I would like to ivite the kimd attention of the members towards the
Where there in implicit provision for the issue of Service certificate at the time of dismissal, discharge or retirement from service. as per Rule 16 & 20
the following constitute the misconduct as per ibid.
The following shall denote misconduct:
(a) Theft, fraud, or dishonesty in connection with the employer’s business or property.
(b) Taking or giving of bribes or an illegal gratification whatsoever in connection with the employer’s business or his own interests.
(c) Willful insubordination or disobedience, whether alone or in conjunction with another or others, or of any lawful or reasonable order of a superior. The order of the superior should normally be in writing.
(d) Habitual late attendance and habitual absence without leave or without sufficient cause.
(e) Drunkenness, fighting or riotous, disorderly or indecent behaviors while on duty at the place of work.
(f) Habitual neglect of work.
(g) Habitual indiscipline.
(h) Smoking underground within the area in places where it is prohibited.
(i) Causing willful damage to work in progress or to property of the employer.
(j) Sleeping on duty.
(k) Malingering or showing down work.
(l) Acceptance of gifts from subordinate employees.
(m) Conviction in any Court of Law for any criminal offence involving moral turpitude.
(n) Continuous absence without permission and without satisfactory cause for more than ten days.
(o) Giving false information regarding one’s name, age, father’s name,
qualification or previous service at the time of the employment.
(p) Leaving work without permission or sufficient reason.
(q) Any breach of the Mines Act, 1952, or any other Act or any rules,
regulations or bye-laws there under, or of any Standing Orders.
(r) Threatening, abusing or assaulting any superior or co-worker.
(s) Habitual money-lending.
(t) Preaching of or inciting to violence.
(u) Abetment of or attempt at abetment of any of the above acts of
misconduct.
(v) Going on illegal strike either singly or with other workers with out giving 14 day’s previous notice.
(w) Disclosing to any unauthorized person of any confidential information in regard to the working or process of the establishment which may come into the possession of the workman in the course of his work.
(x) Refusal to accepted any charge-sheet or order or notice communicated in writing.
(y) Failure or refusal to wear or use any protective equipment given by the employers.
From India, Chandigarh
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INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946
and
INDUSTRIAL EMPLOYMENT (STANDING ORDERS) CENTRAL RULES, 1946
and
INDUSTRIAL EMPLOYMENT (STANDING ORDERS) CENTRAL RULES, 1946
Where there in implicit provision for the issue of Service certificate at the time of dismissal, discharge or retirement from service. as per Rule 16 & 20
the following constitute the misconduct as per ibid.
The following shall denote misconduct:
(a) Theft, fraud, or dishonesty in connection with the employer’s business or property.
(b) Taking or giving of bribes or an illegal gratification whatsoever in connection with the employer’s business or his own interests.
(c) Willful insubordination or disobedience, whether alone or in conjunction with another or others, or of any lawful or reasonable order of a superior. The order of the superior should normally be in writing.
(d) Habitual late attendance and habitual absence without leave or without sufficient cause.
(e) Drunkenness, fighting or riotous, disorderly or indecent behaviors while on duty at the place of work.
(f) Habitual neglect of work.
(g) Habitual indiscipline.
(h) Smoking underground within the area in places where it is prohibited.
(i) Causing willful damage to work in progress or to property of the employer.
(j) Sleeping on duty.
(k) Malingering or showing down work.
(l) Acceptance of gifts from subordinate employees.
(m) Conviction in any Court of Law for any criminal offence involving moral turpitude.
(n) Continuous absence without permission and without satisfactory cause for more than ten days.
(o) Giving false information regarding one’s name, age, father’s name,
qualification or previous service at the time of the employment.
(p) Leaving work without permission or sufficient reason.
(q) Any breach of the Mines Act, 1952, or any other Act or any rules,
regulations or bye-laws there under, or of any Standing Orders.
(r) Threatening, abusing or assaulting any superior or co-worker.
(s) Habitual money-lending.
(t) Preaching of or inciting to violence.
(u) Abetment of or attempt at abetment of any of the above acts of
misconduct.
(v) Going on illegal strike either singly or with other workers with out giving 14 day’s previous notice.
(w) Disclosing to any unauthorized person of any confidential information in regard to the working or process of the establishment which may come into the possession of the workman in the course of his work.
(x) Refusal to accepted any charge-sheet or order or notice communicated in writing.
(y) Failure or refusal to wear or use any protective equipment given by the employers.
From India, Chandigarh
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Dear HR Fraternity,
Mr. Dhingra is absolutely correct. Act wisely according to the situation. If an employee absconds without informing the employer, as an HR person, we should write a letter to his/her last known address through Registered Post with A/D and wait for a week's time. If he/she doesn't turn up, you may send a termination letter citing all the points available to you.
K. Gopalakrishnan
Sriperumbudur
From India, Bangalore
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Mr. Dhingra is absolutely correct. Act wisely according to the situation. If an employee absconds without informing the employer, as an HR person, we should write a letter to his/her last known address through Registered Post with A/D and wait for a week's time. If he/she doesn't turn up, you may send a termination letter citing all the points available to you.
K. Gopalakrishnan
Sriperumbudur
From India, Bangalore
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Dear sir,
In my opinion when the services are terminated by the company the question of recovery of salary in lieu of Notice period does not arise. Secondly, when the company is terminating the services means company is terminating the contract and under this circumstances company is liable to pay the Salary in lieu of notice.
If services are terminated and letter to that effect is issued the question of relieving letter does not arise.
Termination of services of any employee, if he is not a workman under Industrial Dispute Act, should not be a problem. But termination of services of any employee (if he is a workman) without conducting domestic enquiry would be a problem.
Regards,
Sanjay
From India, Pune
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In my opinion when the services are terminated by the company the question of recovery of salary in lieu of Notice period does not arise. Secondly, when the company is terminating the services means company is terminating the contract and under this circumstances company is liable to pay the Salary in lieu of notice.
If services are terminated and letter to that effect is issued the question of relieving letter does not arise.
Termination of services of any employee, if he is not a workman under Industrial Dispute Act, should not be a problem. But termination of services of any employee (if he is a workman) without conducting domestic enquiry would be a problem.
Regards,
Sanjay
From India, Pune
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Dear All,
I found this topic interesting and gained many insights into this issue.
Can we not think from another angle like:
1. Why does the employee abscond?
2. Why does he not inform the superior prior to leaving?
3. Is there any HR lapse that led the employee not to submit a resignation letter?
4. Is the employee-supervisor relationship smooth?
5. Etc., etc.
It is said that employees leave the boss and not the company. Based on my practical experience, a total of 18 employees left their jobs because of the boss (including myself, who was transferred to another business in the same group). We also had an employee who absconded and left without serving the notice period or obtaining a relieving letter simply due to harassment from HR, leading him to join another company without the relieving letter. Currently, the employee has been relieved with good relations and memories, with permission to rejoin if the other company does not suit him. I believe that in this entire discussion, if a positive attitude prevails, there won't be any issues such as absconding cases.
These are solely my views and do not intend to hurt any seniors in the HR field. Each person's views may differ.
Regards,
Neeraj
From India, Mumbai
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I found this topic interesting and gained many insights into this issue.
Can we not think from another angle like:
1. Why does the employee abscond?
2. Why does he not inform the superior prior to leaving?
3. Is there any HR lapse that led the employee not to submit a resignation letter?
4. Is the employee-supervisor relationship smooth?
5. Etc., etc.
It is said that employees leave the boss and not the company. Based on my practical experience, a total of 18 employees left their jobs because of the boss (including myself, who was transferred to another business in the same group). We also had an employee who absconded and left without serving the notice period or obtaining a relieving letter simply due to harassment from HR, leading him to join another company without the relieving letter. Currently, the employee has been relieved with good relations and memories, with permission to rejoin if the other company does not suit him. I believe that in this entire discussion, if a positive attitude prevails, there won't be any issues such as absconding cases.
These are solely my views and do not intend to hurt any seniors in the HR field. Each person's views may differ.
Regards,
Neeraj
From India, Mumbai
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Dear White Eagle,
I have gone through the problems and discussions posted here. Even though the employee initially refused to respond, later he/she did respond. It is better to issue him/her the relieving letter. Before deciding on the termination of an employee from the organization, it is advisable to analyze the employee for a few more days. If you notice any issues during this observation period, then you can proceed with the termination process.
I hope my suggestion is valuable.
From India, Calicut
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I have gone through the problems and discussions posted here. Even though the employee initially refused to respond, later he/she did respond. It is better to issue him/her the relieving letter. Before deciding on the termination of an employee from the organization, it is advisable to analyze the employee for a few more days. If you notice any issues during this observation period, then you can proceed with the termination process.
I hope my suggestion is valuable.
From India, Calicut
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Dear White Eagle,
Even though you may be an HR person, certain things should be analyzed on humanitarian grounds too. Please note that an employee who takes leave for more than 10 days without any notice to the employer may be terminated from the services of the organization. That is absolutely correct.
In such a case, will the company accept it when the employee agrees to work for the notice period (which will not be advisable)? As you are aware, a relieving order is a must for the employee to join another organization.
From India, Madras
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Even though you may be an HR person, certain things should be analyzed on humanitarian grounds too. Please note that an employee who takes leave for more than 10 days without any notice to the employer may be terminated from the services of the organization. That is absolutely correct.
In such a case, will the company accept it when the employee agrees to work for the notice period (which will not be advisable)? As you are aware, a relieving order is a must for the employee to join another organization.
From India, Madras
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Dear,
Notice period, notice pay, and other benefits are to be given to the person who was retrenched by the company or terminated due to misconduct or irrecoverable loss caused by them (compensation can be made for the loss/damage).
For resignation cases, no payment is required except for the leave pay, if applicable. Alternatively, the notice pay can be recovered or the individual can be instructed to serve the notice period. (In this case, they are only eligible for leave pay).
In the case of long absences,
(i) Serve a notice for their return to duty within ___ days upon receiving this letter.
(ii) Issue a second notice after _____ + 2 days, mentioning the possibility of prosecution for their absence. To avoid legal action, they are requested to resume duties within ____ days.
(iii) Issue a third and final notice, stating that despite two previous notices, the individual has not returned to duty, indicating a lack of interest in resuming responsibilities. Consequently, termination from the organization is effective as of __________ (last date of attendance) or (next date following their last day of leave). They are advised to collect their full and final settlement by _________ (date) after completing necessary clearance procedures.
These correspondences are intended to safeguard our position in case of any legal challenges.
With warm regards,
S. Bhaskar
9099024667
From India, Kumbakonam
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Notice period, notice pay, and other benefits are to be given to the person who was retrenched by the company or terminated due to misconduct or irrecoverable loss caused by them (compensation can be made for the loss/damage).
For resignation cases, no payment is required except for the leave pay, if applicable. Alternatively, the notice pay can be recovered or the individual can be instructed to serve the notice period. (In this case, they are only eligible for leave pay).
In the case of long absences,
(i) Serve a notice for their return to duty within ___ days upon receiving this letter.
(ii) Issue a second notice after _____ + 2 days, mentioning the possibility of prosecution for their absence. To avoid legal action, they are requested to resume duties within ____ days.
(iii) Issue a third and final notice, stating that despite two previous notices, the individual has not returned to duty, indicating a lack of interest in resuming responsibilities. Consequently, termination from the organization is effective as of __________ (last date of attendance) or (next date following their last day of leave). They are advised to collect their full and final settlement by _________ (date) after completing necessary clearance procedures.
These correspondences are intended to safeguard our position in case of any legal challenges.
With warm regards,
S. Bhaskar
9099024667
From India, Kumbakonam
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Imagine a situation when the employee has challenged your termination as illegal before the labor court. Better issue a relieving letter as he has settled dues to the company and accepted your termination.
From India, Mumbai
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From India, Mumbai
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dear Querist,
my point wise advice is as below
i)Yes . Coy. has every right to enforce adherence to notice period /pay in lieu thereof as per terms of contract..
ii)Yes. employee is entitled to relieving letter as he has fulfilled his part of contract of services.However coy should see that he has no dues or coy. property ( ID card/Laptop/Mobile etc.)remaining with him.
iii) Absconding means absenting from duties without applying for his leave due. This is is a misconduct on the part of an employee for which disciplinary proceedings can be started against him if he is a habitual offender/repeateror is absenting for a long or not responding to comy letters for joining his duties.Any such act by an employee leads to disruption in the office work.
However if coy. chooses to accept the notice period dues, it tantamount to absolving him of his misconduct.Please note that"Termination" in absconding cases can only be done after going thru the process of holding disciplinary proceedings, as termination is a major penalty.
Ultimately it is for the company to decide the alternative to choose depending upon the circumstances of each case and the employee being dealt with and there can be no strait jacket formulae for these type of cases.
Hope u are clear in this aspect of HR now.
CK SAFAYA
HR CONSULTANT AND LABOUR LAWS ADVOCATE
From India, New Delhi
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my point wise advice is as below
i)Yes . Coy. has every right to enforce adherence to notice period /pay in lieu thereof as per terms of contract..
ii)Yes. employee is entitled to relieving letter as he has fulfilled his part of contract of services.However coy should see that he has no dues or coy. property ( ID card/Laptop/Mobile etc.)remaining with him.
iii) Absconding means absenting from duties without applying for his leave due. This is is a misconduct on the part of an employee for which disciplinary proceedings can be started against him if he is a habitual offender/repeateror is absenting for a long or not responding to comy letters for joining his duties.Any such act by an employee leads to disruption in the office work.
However if coy. chooses to accept the notice period dues, it tantamount to absolving him of his misconduct.Please note that"Termination" in absconding cases can only be done after going thru the process of holding disciplinary proceedings, as termination is a major penalty.
Ultimately it is for the company to decide the alternative to choose depending upon the circumstances of each case and the employee being dealt with and there can be no strait jacket formulae for these type of cases.
Hope u are clear in this aspect of HR now.
CK SAFAYA
HR CONSULTANT AND LABOUR LAWS ADVOCATE
From India, New Delhi
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It is pertinent to mention that the principles of natural justice are not just applicable to workmen under the ID act. If you are terminating any supervisory level/managerial level employee without a domestic inquiry, and if he is filing a suit in court, the court may order reinstatement since the principles of natural justice have not been followed.
From India, Mumbai
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From India, Mumbai
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If the employee is not available for such an acceptance of your 'Termination', what is your response. The employee is absconding..
From India, Mumbai
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From India, Mumbai
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I agree to this fact. Courts in their initial sittings inquire whether the employee was given a proper and fair chance to prove himself. In this case, the company should inform him that absenting without authorization is misconduct and should provide him with an adequate chance to respond to such a letter. It should also advise him to resume duty immediately. Three such notices give the company an advantage.
However, that is not all. The company should initiate a Domestic enquiry/Disciplinary action on the employee, and if the employee does not attend the DE, the same may be conducted ex-parte, and he may be terminated or punished according to the severity of the misconduct. In any court of law, the company should be able to prove that the misconduct was severe and has caused damages to the company/image. If such a process is not followed, then the company is vulnerable to court orders against it if the terminated employee approaches the court.
Dear Notice period/notice pay and other benefits to be given to the person who got retrenched by the company and who got terminated by the company due to misconduct or due to irrecoverable loss made by him (you can make good for the loss/damage caused by him). For Resignation cases, you need not pay anything except his leave pay if applicable, or even you can recover the notice pay or instruct him to serve the notice period. (Here, he is eligible only for leave pay). For Long Absent cases, (i) Serve him a notice to return for duty within ___ days on receipt of this letter. (ii) Serve him a second notice after _____ + 2 days by mentioning that he is liable to be prosecuted for his lapse and to save himself from such litigation, you can request him to join within ____ days for duties. (iii) Serve him the third and final notice stating that even after sending you 2 notices you have not responded/turned for duty, which seems that you are not interested to resume your duties. Hence, you have been terminated from this organization on __________ (Last date of his attendance) or (Next date from his last day of leave). You are advised to come and collect your full and final settlement by _________ (date) after making your necessary clearance procedure. I think this correspondence will help us to keep on the safe side even if he approaches any court of Law.
With warm regards, S. Bhaskar 9099024667
From India, Mumbai
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However, that is not all. The company should initiate a Domestic enquiry/Disciplinary action on the employee, and if the employee does not attend the DE, the same may be conducted ex-parte, and he may be terminated or punished according to the severity of the misconduct. In any court of law, the company should be able to prove that the misconduct was severe and has caused damages to the company/image. If such a process is not followed, then the company is vulnerable to court orders against it if the terminated employee approaches the court.
Dear Notice period/notice pay and other benefits to be given to the person who got retrenched by the company and who got terminated by the company due to misconduct or due to irrecoverable loss made by him (you can make good for the loss/damage caused by him). For Resignation cases, you need not pay anything except his leave pay if applicable, or even you can recover the notice pay or instruct him to serve the notice period. (Here, he is eligible only for leave pay). For Long Absent cases, (i) Serve him a notice to return for duty within ___ days on receipt of this letter. (ii) Serve him a second notice after _____ + 2 days by mentioning that he is liable to be prosecuted for his lapse and to save himself from such litigation, you can request him to join within ____ days for duties. (iii) Serve him the third and final notice stating that even after sending you 2 notices you have not responded/turned for duty, which seems that you are not interested to resume your duties. Hence, you have been terminated from this organization on __________ (Last date of his attendance) or (Next date from his last day of leave). You are advised to come and collect your full and final settlement by _________ (date) after making your necessary clearance procedure. I think this correspondence will help us to keep on the safe side even if he approaches any court of Law.
With warm regards, S. Bhaskar 9099024667
From India, Mumbai
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Dear White Eagle,
I totally agree with all. Nowadays, we always try to refer to some authority made by the Government/SC/HC without using our brains. All laws are made based on circumstances where nobody stands with the complaint. We have become habituated to look back and move forward.
Thanks to all of you for your valuable opinions.
Regards, Jai
From India, Bengaluru
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I totally agree with all. Nowadays, we always try to refer to some authority made by the Government/SC/HC without using our brains. All laws are made based on circumstances where nobody stands with the complaint. We have become habituated to look back and move forward.
Thanks to all of you for your valuable opinions.
Regards, Jai
From India, Bengaluru
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Dear friend,
If you have certified standing orders, then absconding will be considered as a misconduct of unauthorized absence, and you may have to take disciplinary action to terminate his service by giving an opportunity for a hearing. If you are not covered under the Standing Orders Act and do not have standing orders, then you may proceed with termination under the clauses of the appointment order or service rules, if any. In any case, there is no harm in releasing the relieving order if he has paid your dues. Even in the case of termination, there is no harm in issuing a relieving order citing the reason for termination. A relieving order is always safe as the severance of the relationship gets communicated, limiting the company's liability. It is a very important communication internally to all your branches and departments so that no connected person would transact with an employee who has ceased to be in the company.
Sincerely yours,
S. GURUSAMYNATHAN
From India, Coimbatore
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If you have certified standing orders, then absconding will be considered as a misconduct of unauthorized absence, and you may have to take disciplinary action to terminate his service by giving an opportunity for a hearing. If you are not covered under the Standing Orders Act and do not have standing orders, then you may proceed with termination under the clauses of the appointment order or service rules, if any. In any case, there is no harm in releasing the relieving order if he has paid your dues. Even in the case of termination, there is no harm in issuing a relieving order citing the reason for termination. A relieving order is always safe as the severance of the relationship gets communicated, limiting the company's liability. It is a very important communication internally to all your branches and departments so that no connected person would transact with an employee who has ceased to be in the company.
Sincerely yours,
S. GURUSAMYNATHAN
From India, Coimbatore
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Dear Mr. Renjith,
If a person does not report for duty without any valid reason after being served notice, the first notice should be a call to report for duty. The second notice should inform the employee that failure to report will result in administrative/disciplinary action for not reporting for duty on time. If the employee still does not show up, the company will have no choice but to terminate his services, as explained in the third and final notice. This notice should state that the current circumstances do not allow for the employee to resume duties, and he can come to collect his experience certificate and settle final matters with the company.
It is important to ensure that no employee feels harassed during the full and final settlement process. They should leave with positive memories. If displaying authority is necessary, it should be directed towards current employees rather than former employees or potential hires.
With warm regards,
S. Bhaskar
9099024667
From India, Kumbakonam
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If a person does not report for duty without any valid reason after being served notice, the first notice should be a call to report for duty. The second notice should inform the employee that failure to report will result in administrative/disciplinary action for not reporting for duty on time. If the employee still does not show up, the company will have no choice but to terminate his services, as explained in the third and final notice. This notice should state that the current circumstances do not allow for the employee to resume duties, and he can come to collect his experience certificate and settle final matters with the company.
It is important to ensure that no employee feels harassed during the full and final settlement process. They should leave with positive memories. If displaying authority is necessary, it should be directed towards current employees rather than former employees or potential hires.
With warm regards,
S. Bhaskar
9099024667
From India, Kumbakonam
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Hi friends,
Thanks to all for your valuable contributions. Here is a summary of what I understand from our discussions:
The company should follow all the necessary procedures in the case of an employee absconding and must provide a reasonable opportunity and notice to the employee. If the employee does not respond or avoids the company's attempts, the company should issue an exit letter.
If the company requests the recovery of the notice period, and the employee clears it, the company should provide a relieving letter to the employee.
If the company does not intend to issue a relieving letter to the employee, then initially, the company should not request a notice period.
Please correct me if I am mistaken.
[White Eagle](http://kuldeeprathore.blogspot.com/)
From India, Hyderabad
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Thanks to all for your valuable contributions. Here is a summary of what I understand from our discussions:
The company should follow all the necessary procedures in the case of an employee absconding and must provide a reasonable opportunity and notice to the employee. If the employee does not respond or avoids the company's attempts, the company should issue an exit letter.
If the company requests the recovery of the notice period, and the employee clears it, the company should provide a relieving letter to the employee.
If the company does not intend to issue a relieving letter to the employee, then initially, the company should not request a notice period.
Please correct me if I am mistaken.
[White Eagle](http://kuldeeprathore.blogspot.com/)
From India, Hyderabad
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Very interesting discussion, though I am joining it late. The discussion has raised many questions and doubts in my mind, and these doubts are not addressed satisfactorily so far:
- Employee is terminated, he has not resigned, how can the employer ask for Notice Pay from the employee?
- Is it mandatory for the employer to give notice pay to a terminated employee who is terminated on the grounds of misconduct?
Once a Termination Letter is issued, what is the need for issuing another Relieving Letter? I believe Relieving is automatic with Termination.
If a Relieving Letter is to be issued, can we not mention the reason for separation as 'Termination due to unauthorized absence' in the Relieving Letter?
Terminated employees may also demand a Service Certificate, and again, should we not mention the reason for separation as 'Termination due to unauthorized absence'?
From India, Pune
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- Employee is terminated, he has not resigned, how can the employer ask for Notice Pay from the employee?
- Is it mandatory for the employer to give notice pay to a terminated employee who is terminated on the grounds of misconduct?
Once a Termination Letter is issued, what is the need for issuing another Relieving Letter? I believe Relieving is automatic with Termination.
If a Relieving Letter is to be issued, can we not mention the reason for separation as 'Termination due to unauthorized absence' in the Relieving Letter?
Terminated employees may also demand a Service Certificate, and again, should we not mention the reason for separation as 'Termination due to unauthorized absence'?
From India, Pune
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Hi VK,
You have raised very valid and vital questions. Probably your queries would be satisfied by the following clarifications:
1) In case of termination due to unauthorized absence as misconduct, there is no obligation for the management to provide notice pay. The requirement for notice pay arises only when an employee voluntarily resigns or when the management decides to terminate their services. In this scenario, it is a case of termination as a disciplinary measure.
2) As discussed in (1) above, since the termination in this case is not voluntary on the part of the management but is due to misconduct by the employee, no notice pay is due, and no relieving letter is required to be issued by the employer. Relieving letters are typically issued upon retirement or resignation by the employee.
3) The termination letter itself includes the reason for termination based on misconduct and justifies the action, making it both a termination and relieving letter for the employee.
4) Regardless of the reason for termination, the employee has the right to request a service certificate as acknowledgment of their service to the organization. There is no valid reason for denying the issuance of a service certificate upon request. The management can mention the reason for the termination in the service certificate if required.
PS Dhingra
Management & Vigilance Consultant
Dhingra Group of Consultants
New Delhi
09968076381
dcgroup1962@gmail.com
Very interesting discussion, though I am joining it late.
Discussion has raised many questions and doubts in my mind that have not been satisfactorily addressed so far:
- If an employee is terminated and has not resigned, how can the employer ask for Notice Pay from the employee?
- Is it mandatory for the employer to provide notice pay to a terminated employee, especially when the termination is due to misconduct? Shouldn't the issuance of a Termination Letter suffice without the need for a separate Relieving Letter?
- If a Relieving Letter is deemed necessary, can the reason for separation be mentioned as 'Termination due to unauthorized absence'?
- When a terminated employee requests a Service Certificate, should the reason for separation be stated as 'Termination due to unauthorized absence'?
Corrected Spelling and Grammar: The text has been reviewed and corrected for spelling and grammar errors. Paragraphs have been formatted appropriately, and line breaks have been adjusted for clarity and readability.
From India, Delhi
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You have raised very valid and vital questions. Probably your queries would be satisfied by the following clarifications:
1) In case of termination due to unauthorized absence as misconduct, there is no obligation for the management to provide notice pay. The requirement for notice pay arises only when an employee voluntarily resigns or when the management decides to terminate their services. In this scenario, it is a case of termination as a disciplinary measure.
2) As discussed in (1) above, since the termination in this case is not voluntary on the part of the management but is due to misconduct by the employee, no notice pay is due, and no relieving letter is required to be issued by the employer. Relieving letters are typically issued upon retirement or resignation by the employee.
3) The termination letter itself includes the reason for termination based on misconduct and justifies the action, making it both a termination and relieving letter for the employee.
4) Regardless of the reason for termination, the employee has the right to request a service certificate as acknowledgment of their service to the organization. There is no valid reason for denying the issuance of a service certificate upon request. The management can mention the reason for the termination in the service certificate if required.
PS Dhingra
Management & Vigilance Consultant
Dhingra Group of Consultants
New Delhi
09968076381
dcgroup1962@gmail.com
Very interesting discussion, though I am joining it late.
Discussion has raised many questions and doubts in my mind that have not been satisfactorily addressed so far:
- If an employee is terminated and has not resigned, how can the employer ask for Notice Pay from the employee?
- Is it mandatory for the employer to provide notice pay to a terminated employee, especially when the termination is due to misconduct? Shouldn't the issuance of a Termination Letter suffice without the need for a separate Relieving Letter?
- If a Relieving Letter is deemed necessary, can the reason for separation be mentioned as 'Termination due to unauthorized absence'?
- When a terminated employee requests a Service Certificate, should the reason for separation be stated as 'Termination due to unauthorized absence'?
Corrected Spelling and Grammar: The text has been reviewed and corrected for spelling and grammar errors. Paragraphs have been formatted appropriately, and line breaks have been adjusted for clarity and readability.
From India, Delhi
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Thank you, Mr. Bhanot and Mr. Dhingra. I was feeling apprehensive to raise a question after going through the discussion in the thread. Now I am feeling relieved. Very surprisingly, most of the views expressed earlier in such a long discussion are contrary to the views expressed by Mr. Dhingra.
I request all those having contrary views to Mr. Dhingra to further discuss and comment.
From India, Pune
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I request all those having contrary views to Mr. Dhingra to further discuss and comment.
From India, Pune
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Dear All,
I have a different opinion. In this case, the company has already terminated the services of the employee unilaterally, so demanding payment in lieu of the notice period post-termination doesn't make a valid demand. Why should the employee insist on a relieving letter? How will it help him in securing future employment? Will the company write "Resigned on his own accord" instead of "Terminated on account of being absent unauthorizedly" as the reason for termination in the relieving letter if the notice period payment is made?
However, in this case, the employee has made the payment as demanded by the company. Under the circumstances, his relieving letter cannot be withheld. I find it a fit case to be contested legally.
Jai
From India
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I have a different opinion. In this case, the company has already terminated the services of the employee unilaterally, so demanding payment in lieu of the notice period post-termination doesn't make a valid demand. Why should the employee insist on a relieving letter? How will it help him in securing future employment? Will the company write "Resigned on his own accord" instead of "Terminated on account of being absent unauthorizedly" as the reason for termination in the relieving letter if the notice period payment is made?
However, in this case, the employee has made the payment as demanded by the company. Under the circumstances, his relieving letter cannot be withheld. I find it a fit case to be contested legally.
Jai
From India
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1) Since the organisation has terminated the srvices of the employee, it has no legal right to ask for recovery in lieu of notice period rather organisation has to pay one month's salary along with termination letter.
2) It is obligatory on the part of employer to issue Service Certificate alongwith his final settlement.
3) If the employee, during the period of absconding, was employed some where else, the organisation can recover the notice pay.
From India, Surat
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2) It is obligatory on the part of employer to issue Service Certificate alongwith his final settlement.
3) If the employee, during the period of absconding, was employed some where else, the organisation can recover the notice pay.
From India, Surat
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Dear Jai,
I think before posting your queries, you have not thoroughly read my clarifications on this page itself. I feel the replies to your queries have already been answered in my post on this very page in my post from yesterday. However, you are welcome if you still have any doubts after reading my earlier post from yesterday.
PS Dhingra
From India, Delhi
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I think before posting your queries, you have not thoroughly read my clarifications on this page itself. I feel the replies to your queries have already been answered in my post on this very page in my post from yesterday. However, you are welcome if you still have any doubts after reading my earlier post from yesterday.
PS Dhingra
From India, Delhi
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Dear Mr. Dhingra,
Thank you for your email.
The sole purpose of my email was to clarify that:
(a) the action taken by the company, as described in the post, was completely wrong and against the principles of natural justice,
(b) the employee would not benefit in any way by paying the notice period because the termination reason would be stigmatic, affecting future job prospects, and
(c) if the employee were to legally challenge the termination, I am confident that the company would lose and be required to reinstate the employee.
Best regards,
Jai
From India
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Thank you for your email.
The sole purpose of my email was to clarify that:
(a) the action taken by the company, as described in the post, was completely wrong and against the principles of natural justice,
(b) the employee would not benefit in any way by paying the notice period because the termination reason would be stigmatic, affecting future job prospects, and
(c) if the employee were to legally challenge the termination, I am confident that the company would lose and be required to reinstate the employee.
Best regards,
Jai
From India
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Dear vkokamthankar,
I am surprised to see your comments that the views expressed by all were contrary to the views of Mr. Bhanot and Dhingra, as it appears that you have not gone through my views seriously. In my writings, I have given you an insight into the problem beyond the ordinary and dealt with it in a much broader context to make the discussion a complete piece of advice.
Ck Safaya
Advocate and HR consultant
Thank you, Mr. Bhanot and Mr. Dhingra. I was feeling apprehensive about raising a question after going through the discussion in the thread. Now, I am feeling relieved. Very surprisingly, most of the views expressed earlier in such a long discussion are contrary to the views expressed by Mr. Dhingra. I request all those having contrary views to Mr. Dhingra to further discuss and comment.
From India, New Delhi
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I am surprised to see your comments that the views expressed by all were contrary to the views of Mr. Bhanot and Dhingra, as it appears that you have not gone through my views seriously. In my writings, I have given you an insight into the problem beyond the ordinary and dealt with it in a much broader context to make the discussion a complete piece of advice.
Ck Safaya
Advocate and HR consultant
Thank you, Mr. Bhanot and Mr. Dhingra. I was feeling apprehensive about raising a question after going through the discussion in the thread. Now, I am feeling relieved. Very surprisingly, most of the views expressed earlier in such a long discussion are contrary to the views expressed by Mr. Dhingra. I request all those having contrary views to Mr. Dhingra to further discuss and comment.
From India, New Delhi
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Dear Adv. Safaya,
The words I have used in my post are 'most posters have contrary views to those of Mr. Dhingra' and not 'All' as stated by you.
I once again went through your earlier post and to my surprise, your views seem to be contrary to those of Mr. Dhingra. I quote here the very first line of your post 'i) Yes. Coy. has every right to enforce adherence to notice period/pay in lieu thereof as per terms of the contract..'
The very basic point that Mr. Dhingra and I are endorsing here is 'Employer cannot and should not ask for Notice Pay from an Employee whose services are terminated by the Employer.'
More at https://www.citehr.com/304088-abscon...#ixzz19HstBwiH
QUOTE=safayaifci;1381466
dear vkokamthankar,
I am surprised to see your comments that the views expressed by all were contrary to the views of Mr. Bhanot and Dhingra as it appears that you have not gone through my views seriously. In my writings, I have given you an insight into the problem beyond the ordinary and dealt with it in a broader context to make the discussion a complete piece of advice.
Ck Safaya
Advocate and HR consultant
From India, Pune
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The words I have used in my post are 'most posters have contrary views to those of Mr. Dhingra' and not 'All' as stated by you.
I once again went through your earlier post and to my surprise, your views seem to be contrary to those of Mr. Dhingra. I quote here the very first line of your post 'i) Yes. Coy. has every right to enforce adherence to notice period/pay in lieu thereof as per terms of the contract..'
The very basic point that Mr. Dhingra and I are endorsing here is 'Employer cannot and should not ask for Notice Pay from an Employee whose services are terminated by the Employer.'
More at https://www.citehr.com/304088-abscon...#ixzz19HstBwiH
QUOTE=safayaifci;1381466
dear vkokamthankar,
I am surprised to see your comments that the views expressed by all were contrary to the views of Mr. Bhanot and Dhingra as it appears that you have not gone through my views seriously. In my writings, I have given you an insight into the problem beyond the ordinary and dealt with it in a broader context to make the discussion a complete piece of advice.
Ck Safaya
Advocate and HR consultant
From India, Pune
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Dear vkokamthankar and safayaifci,
I believe there should not be any controversy regarding the points raised by you, Ck Safaya, or Mr. Dhingra. I have been following this thread and find that all three of you have provided very good, precise, and relevant inputs. Although expressed in different words, the same spirit shines through, stemming from your experience and expertise. Each of you deserves praise for your contributions.
If there are any minor deviations or misunderstandings (that do not stray from the main concepts), let us overlook them or clarify through Private Messages to avoid confusion, especially for new members. I kindly request all senior members who have been dedicating their time and efforts to nurture individual threads to continue their valuable contributions.
Warm regards.
From India, Delhi
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I believe there should not be any controversy regarding the points raised by you, Ck Safaya, or Mr. Dhingra. I have been following this thread and find that all three of you have provided very good, precise, and relevant inputs. Although expressed in different words, the same spirit shines through, stemming from your experience and expertise. Each of you deserves praise for your contributions.
If there are any minor deviations or misunderstandings (that do not stray from the main concepts), let us overlook them or clarify through Private Messages to avoid confusion, especially for new members. I kindly request all senior members who have been dedicating their time and efforts to nurture individual threads to continue their valuable contributions.
Warm regards.
From India, Delhi
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Thank you to all of you for such very exciting and controversial discussions on absconding employees.
As an HR professional, we are facing the same situations and difficulties when such employees leave the organization without clearance, notice pay, or handing over the charge to their HODs.
The above discussions have provided guidance for me as well as many HR members who participate or join the Citeman network. However, one question that arises in my mind is that absconding employees don't care for the organization or the above formalities, and the HR has to fulfill their duties by sending two notices and then the final notice of termination thereafter (without short notice pay). Even then, the HR does not have the right to recover short notice pay or punish such offenses so that other employees, while leaving the organization, don't follow the same path.
Please continue.
Regards,
Arun
From India, Mumbai
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As an HR professional, we are facing the same situations and difficulties when such employees leave the organization without clearance, notice pay, or handing over the charge to their HODs.
The above discussions have provided guidance for me as well as many HR members who participate or join the Citeman network. However, one question that arises in my mind is that absconding employees don't care for the organization or the above formalities, and the HR has to fulfill their duties by sending two notices and then the final notice of termination thereafter (without short notice pay). Even then, the HR does not have the right to recover short notice pay or punish such offenses so that other employees, while leaving the organization, don't follow the same path.
Please continue.
Regards,
Arun
From India, Mumbai
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In the offer of employment agreement itself, adding the clause for unauthorized absenteeism for more than three days without any valid reason and without prior approval will attract disciplinary action, and its severity will be up to termination of service. Furthermore, unauthorized absenteeism should not exceed three times, which will instill fear in the minds of regular and habitual absentees.
With warm regards,
S. Bhaskar
9099024667
From India, Kumbakonam
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With warm regards,
S. Bhaskar
9099024667
From India, Kumbakonam
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When an employee chooses to abscond, he or she is either unwilling to return, or some extraordinary circumstances have emerged that make it impossible to resume duties. The Standing Orders Act/Rules already provide that being absent for more than 10 days is misconduct, and employees can face disciplinary action.
There is no need to include this in the Appointment Letter. Instead, it can be included in the "Attendance/Leave Policy." The Appointment Letter should mention that the employee's service will be governed by the "Various Policies" of the organization.
From India, Chandigarh
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There is no need to include this in the Appointment Letter. Instead, it can be included in the "Attendance/Leave Policy." The Appointment Letter should mention that the employee's service will be governed by the "Various Policies" of the organization.
From India, Chandigarh
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On this interesting topic, let's consider one more case from both HR and legal points of view:
1. Suppose a company has set a notice period of 3 months from the employee's side and 1 month from its own side.
2. There is a provision that the employee cannot apply for any job within two years.
3. The employee has higher qualifications and can secure a better job. In reality, this job is below the level of his qualifications, and he is taking this job only to alleviate his financial burden until he finds a better opportunity. Additionally, the employee has not disclosed his current employment to the new organization as he is aware that no No Objection Certificate (NOC) will be issued.
4. As the company has effectively compelled him to conceal information about his job application (due to the provision preventing him from applying for a new job for two years), the employee secures a better job within a year and subsequently resigns, offering to pay the bond amount and salary in lieu of the notice period. (Although no bond has been signed, it is stated that a bond for a certain amount will be signed.)
5. His immediate supervisors comment on his resignation saying it "may be accepted with a suitable reliever." He receives a copy of his resignation letter at this point after the remarks and submits it to his boss for further processing.
6. The company does not communicate anything to the employee for an extended period and suddenly issues a notice of unauthorized absconding, asking him to resume duties.
7. Since the employee has already started the better job, he disregards the notice, as he will not return to the old job for lower pay and potential disciplinary issues.
8. The company terminates him after this initial notice. It is possible that the company may not have acknowledged his resignation, or perhaps the boss holding the resignation letter has not forwarded it to higher authorities. The employee is unaware of the exact situation.
Now, considering the scenario above, provide your views on the following:
(i) Does the company have the right to request the bond and notice period amounts (keeping in mind that no bond has been formally executed and it is only mentioned in the offer letter)? The employee signed it with a remark stating, "I accept all the terms and conditions."
(ii) Can the employee claim his provident fund (amounting to Rs. twenty thousand), and should he apply for it through the old employer who terminated him or directly through the EPF office?
(iii) Should the employee request an experience and service certificate? Seeking a relieving certificate would seemingly be unwise.
Hope you can assist this employee.
From India, Delhi
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1. Suppose a company has set a notice period of 3 months from the employee's side and 1 month from its own side.
2. There is a provision that the employee cannot apply for any job within two years.
3. The employee has higher qualifications and can secure a better job. In reality, this job is below the level of his qualifications, and he is taking this job only to alleviate his financial burden until he finds a better opportunity. Additionally, the employee has not disclosed his current employment to the new organization as he is aware that no No Objection Certificate (NOC) will be issued.
4. As the company has effectively compelled him to conceal information about his job application (due to the provision preventing him from applying for a new job for two years), the employee secures a better job within a year and subsequently resigns, offering to pay the bond amount and salary in lieu of the notice period. (Although no bond has been signed, it is stated that a bond for a certain amount will be signed.)
5. His immediate supervisors comment on his resignation saying it "may be accepted with a suitable reliever." He receives a copy of his resignation letter at this point after the remarks and submits it to his boss for further processing.
6. The company does not communicate anything to the employee for an extended period and suddenly issues a notice of unauthorized absconding, asking him to resume duties.
7. Since the employee has already started the better job, he disregards the notice, as he will not return to the old job for lower pay and potential disciplinary issues.
8. The company terminates him after this initial notice. It is possible that the company may not have acknowledged his resignation, or perhaps the boss holding the resignation letter has not forwarded it to higher authorities. The employee is unaware of the exact situation.
Now, considering the scenario above, provide your views on the following:
(i) Does the company have the right to request the bond and notice period amounts (keeping in mind that no bond has been formally executed and it is only mentioned in the offer letter)? The employee signed it with a remark stating, "I accept all the terms and conditions."
(ii) Can the employee claim his provident fund (amounting to Rs. twenty thousand), and should he apply for it through the old employer who terminated him or directly through the EPF office?
(iii) Should the employee request an experience and service certificate? Seeking a relieving certificate would seemingly be unwise.
Hope you can assist this employee.
From India, Delhi
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Hi Everyone,
I used to work for a company and absconded after working for just about 1 month and 15 days (I was on probation) as I got a better opportunity elsewhere. I spoke to the manager and HR that I'd got a better job and as my financial position is weak, I have to take it. Hence, they said they'll treat me as absconded and terminate me (I submitted all company articles with me back to them). Now, after almost a month from my last working day, they've mailed me asking for F & F settlement amount which I can't afford to pay. They have also mentioned that if I fail to pay dues within 3 days, they will be constrained to initiate appropriate action against me. However, there is a sentence in the mail that says, "It is only on receipt of the recovery amount they will provide the experience or relieving letter." Friends, I'm scared and need to know if I can ignore it and not pay anything. I don't want the experience letter; I know it will affect my future, but I can't afford to pay the amount. I'm cornered; please help me guys.
From India, Ahmedabad
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I used to work for a company and absconded after working for just about 1 month and 15 days (I was on probation) as I got a better opportunity elsewhere. I spoke to the manager and HR that I'd got a better job and as my financial position is weak, I have to take it. Hence, they said they'll treat me as absconded and terminate me (I submitted all company articles with me back to them). Now, after almost a month from my last working day, they've mailed me asking for F & F settlement amount which I can't afford to pay. They have also mentioned that if I fail to pay dues within 3 days, they will be constrained to initiate appropriate action against me. However, there is a sentence in the mail that says, "It is only on receipt of the recovery amount they will provide the experience or relieving letter." Friends, I'm scared and need to know if I can ignore it and not pay anything. I don't want the experience letter; I know it will affect my future, but I can't afford to pay the amount. I'm cornered; please help me guys.
From India, Ahmedabad
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Dear Ahuja and Adventurer,
I believe both of you would have accepted and signed the offer letters/appointment orders during the initial phase of your employment with your eyes and minds wide open. Whatever the circumstances were at that time, it would have been more appropriate to make a counteroffer or request amendments to unfavorable conditions when you were considering a better job opportunity. There is no value in now scrutinizing the terms for loopholes to your advantage after breaching the exit conditions of the employment contract that you had previously agreed to in full.
Addressing Ahuja's queries from 2011 that remain unanswered, if your employer terminated your services due to unauthorized absence, they cannot take action for violating a bond that you did not actually sign and execute. If you have documentation proving your employment and EPF membership, you can directly submit your withdrawal application to the EPFO after having it attested by the Labor Officer for the area. Your own statement addresses your third query. I hope you will provide feedback now.
As for Adventurer, technically, you are still considered employed by your previous organization since no final action has been taken regarding your unauthorized absence. I recommend contacting HR and settling any outstanding dues in accordance with the exit terms of your employment contract.
Kind regards.
From India, Salem
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I believe both of you would have accepted and signed the offer letters/appointment orders during the initial phase of your employment with your eyes and minds wide open. Whatever the circumstances were at that time, it would have been more appropriate to make a counteroffer or request amendments to unfavorable conditions when you were considering a better job opportunity. There is no value in now scrutinizing the terms for loopholes to your advantage after breaching the exit conditions of the employment contract that you had previously agreed to in full.
Addressing Ahuja's queries from 2011 that remain unanswered, if your employer terminated your services due to unauthorized absence, they cannot take action for violating a bond that you did not actually sign and execute. If you have documentation proving your employment and EPF membership, you can directly submit your withdrawal application to the EPFO after having it attested by the Labor Officer for the area. Your own statement addresses your third query. I hope you will provide feedback now.
As for Adventurer, technically, you are still considered employed by your previous organization since no final action has been taken regarding your unauthorized absence. I recommend contacting HR and settling any outstanding dues in accordance with the exit terms of your employment contract.
Kind regards.
From India, Salem
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