R Roy
What should an employer do when an employee refuses to serve a notice period? Can the company hold the due salary of that employee who refuses to serve a notice period? In that situation, the employee will not entitled to the reliving or any other letter.
From India, Delhi
jeevarathnam
636

If Employee is not ready to serve the notice period which is as per the employment contract then Employer has right to with hold the salary & relieving as well as service certificates. You can keep the F&F as well
From India, Bangalore
kannanmv
257

Notice period is one of the terms and condition duly signed and accepted by the employee at the time of joining.

Though, you can rightfully withhold the salary due to the employee, to the extent he/ she falls short of notice period,

If the employee is willing to pay amount equivalent to notice pay, then you can consider it.

If he/ she has any earned leave to his/ her account, you can consider setting it off against his/ her notice period, to the extent earned leave is available.

However, we also have employees who withdraw all their entitlements including previous month's salary and then submit resignation and seek immediate relieving.

In these cases the amount due to the employee, even after considering the earned leave to his/ her credit, falls short of the amount due from him/ her.

In such an event, you can ask the employee to pay the amount that falls short of notice period.

If he/ she refuses you can officially write a letter to his/ her last known address, communicating the amount due from him. This letter can be sent by Registered Post with Acknowledgement Due (RPAD).

Only if the employee fulfils his/ her contractual obligations will he/ she be entitled to receive relieving letter/ service certificate.

Regards

MVK

From India, Madras
Dinesh Divekar
7863

Dear R Roy,

Earlier I have given replies to similar posts. You may click the following links to refer to them:

https://www.citehr.com/showpost.php?p=2497183&postcount=3

https://www.citehr.com/showpost.php?p=2474264&postcount=2

https://www.citehr.com/showpost.php?p=1043036&postcount=2

Thanks,

Dinesh Divekar

From India, Bangalore
Madhu.T.K
4208

In respect of employees who do not have any functional powers and responsibilities of a manager and thereby covered by Industrial Disputes Act, the employer cannot hold the salary for the reason that the employee has not served notice period. This is because under ID Act a worker is not under any obligation to serve notice or pay salary in lieu of notice. It is also true that if an employer has to terminate the contract of employment he should give notice. Certainly, if the establishment has certified standing orders, then it shall be obligatory on the part of workers to serve notice. But just a provision in the appointment order is not sufficient to circumvent the ID Act.
From India, Kannur
PRABHAT RANJAN MOHANTY
583

In general, the employment conditions that either party to serve the notice or to pay in lieu of notice. Where employee is not ready to serve the notice period, the employer can ask to pay or hold the pay and can terminate the employment for non compliance of contract of employment by the Employer. Employer also hold right to with hold the salary & other paybles, case to case basis and the situation.
From India, Mumbai
mamta kumari
7

Please find out the reason why he is not serving the notice period, if it's really genuine reason then you can always consider and waive off. But if it's not, then send him an email to serve the notice period compulsory, if incase of failure to do so then there will be no F&F settlement in the future.
From India, Mumbai
loginmiraclelogistics
1066

There existing employer & employee relationship which is a 'contract' between them. The terms & conditions of employment shall spell out clearly circumstances of this nature and how to deal in cases of non compliance as 'breach of contract'. While salary of NP cannot be withheld statutorily, other weapons available to the employer are i) withholding 'service certificate' & ii) relieving letter. Moreover terminal benefits such as EPF & EPS endorsements, Gratuity, leave encashment are also other aspects available but with strings as they are time bound. Only option available to the employee, if agreed by the employer, cash compensation i.e., pay & get relieved.
From India, Bangalore
Madhu.T.K
4208

the Other weapons available to the employer cannot include non issue of relieving order per se because relieving an employee is for the benefits of the employer and not for the employee. True, in order to pursue a career he would require a relieving order. But more than that issuance of relieving letter is important for the employer in order to make the employer responsible for the acts committed by the said employee while not in employment but legally in service of the employer. He is like a buyer of your vehicle without proper sale letter and transfer of ownership.

The employer cannot hold the PF benefits provided the establishment is not an exempted establishment having their own PF Trust. Even without the signature of approval of the employer, a member can transfer or withdraw his PF accumulations. If the employer is not putting exit of employee, the remedy is available for the employee.

Gratuity cannot be forfeited because non service of notice period will not come under the scope of section 4(6) of the Payment of Gratuity Act. Any delayed payment of gratuity beyond 30 days of last working day will attract interest also.

Leave encashment is also a right at the time of discharge under the law. Therefore, in my opinion, if the employee concerned is not a manager (manager by function and not just by designation) the only option available is to settle the dues and issue him a relieving letter. The employer can retaliate, as many in the new generation companies do now, by giving negative remarks in the background verification etc. But that will not add value to his organisation by any means.

From India, Kannur
saswatabanerjee
2385

You can withhold the relieving letter and experience letter.
You can make it and keep in file but dont give to the employee.
There is little he can do against it.
Giving negative remarks in BVG is also another weapon for you.

You can not really speaking, hold back his salary.
But you can hold back to the extent of the notice pay that he has not completed.

As Madhu said, PF is not in your hands, Gratuity you will have to pay if he goes to the Gratuity Authority and you get a notice. There is no provision to adjust outstanding against it.

From India, Mumbai
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