Hello Professional HR & Business Veterans,
Please find attached a alarming whistle-blowing watchdog entrepreneurial lesson on employee relation i.e. Legal Clarification on Absconding Employee, Contract Labour Engagement & Leave Entitlement Amendment.
From India, Mumbai
539Please find attached a alarming whistle-blowing watchdog entrepreneurial lesson on employee relation i.e. Legal Clarification on Absconding Employee, Contract Labour Engagement & Leave Entitlement Amendment.
From India, Mumbai
Thanks for posting this interesting report Dilip.
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From India, Delhi
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From India, Delhi
Hello Professional HR & Business Veterans, thnaks ..dillip ....it was very informative....
From India, Shimla
From India, Shimla
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
From India, Rajkot
Absconding or abandonment of services by an employee in violation of the terms of contract of employment is a misconduct invoking disciplinary action and entailing 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,if any in future and to fully observe the legal formalities in this connection, pl take the following steps one by one;
1)Send a notice to the employee at his last-known address asking him to report for duty within a specified date together with his explanation for his unauthorised absence.You may also ask him to surrender Company's property,if any in his possession at the time of his absence.
2)If no response even after receipt or in case of non-service of ur notice, frame charges in definitive language under the relevant clause of ur Standing Orders and publish the same in a newspaper.
3)If reply any received is not satisfactory or 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 n time of the same.
5)IN case of non-participation, the E.O would set him expartie and submit his findings to you.
6)After perusing the report of the E.O, YOU MAY COME TO THE CONCLUSION that the charges levelled stand proved and communicate the same together with the proposed punishment, copy of E.O's report and a second show-cause notice.
7)AFTER the expiry of time limit fixed in the final notice, you can terminate his services by an orders of dismissal.
The above exercise may seem to be cumbersome n time-consuming.But no other way.
From India, Salem
1)Send a notice to the employee at his last-known address asking him to report for duty within a specified date together with his explanation for his unauthorised absence.You may also ask him to surrender Company's property,if any in his possession at the time of his absence.
2)If no response even after receipt or in case of non-service of ur notice, frame charges in definitive language under the relevant clause of ur Standing Orders and publish the same in a newspaper.
3)If reply any received is not satisfactory or 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 n time of the same.
5)IN case of non-participation, the E.O would set him expartie and submit his findings to you.
6)After perusing the report of the E.O, YOU MAY COME TO THE CONCLUSION that the charges levelled stand proved and communicate the same together with the proposed punishment, copy of E.O's report and a second show-cause notice.
7)AFTER the expiry of time limit fixed in the final notice, you can terminate his services by an orders of dismissal.
The above exercise may seem to be cumbersome n time-consuming.But no other way.
From India, Salem
Sir , is there are any format of notice ? Shall i have to contact a legal adviser for the same ?Appreciate your response .
From India, Rajkot
From India, Rajkot
The format of the initial notice, charge memo etc is as usual. However, better pl contact a consultant or an advocate dealing in labour cases
From India, Salem
From India, Salem
Dear Dilip ji,
Thanks 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 extend the employer may treate the employment of the employee under question as terminated on and from the date the employee ceased to come to work.
I fully agree with the posting on this subject by Shri. Umakanthan ji as above.
I have seen some cases in which the Absconding / Abandoning / NCNS employees claiming employment even after 2 / 3 years.
Generally the view is taken by employers that if employee is Absconding / Abandoning / NCNS for a long period, such employee is deemed to have abondoned his employment. HC: Mumbai in Mahamadsha Patel vs. Mastanbaug Consumers' co-op. Wholesale and Retail Stores reported in 1998 (79) FLR p 874 has held that in such a case the legal position is almost settled that even in case of abondonment of service by employee the employer has to give notice to the employee calling upon him to resume his duties. If the employee does not turn up despite such notice, the employer should hold an enquiry on that ground and then pass appropriate order of termination.
Other members are requested to make their comments.
From India, Mumbai
Thanks 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 extend the employer may treate the employment of the employee under question as terminated on and from the date the employee ceased to come to work.
I fully agree with the posting on this subject by Shri. Umakanthan ji as above.
I have seen some cases in which the Absconding / Abandoning / NCNS employees claiming employment even after 2 / 3 years.
Generally the view is taken by employers that if employee is Absconding / Abandoning / NCNS for a long period, such employee is deemed to have abondoned his employment. HC: Mumbai in Mahamadsha Patel vs. Mastanbaug Consumers' co-op. Wholesale and Retail Stores reported in 1998 (79) FLR p 874 has held that in such a case the legal position is almost settled that even in case of abondonment of service by employee the employer has to give notice to the employee calling upon him to resume his duties. If the employee does not turn up despite such notice, the employer should hold an enquiry on that ground and then pass appropriate order of termination.
Other members are requested to make their comments.
From India, Mumbai
Dear Umakanthan.M
Need your help in understanding the principle of resignation, if I am not wrong as per Any Establishment policy, it is either 1 month notice or 3 month on either side or 1 month pay or 3 month pay in lieu of not serving the terms of 1 month or 3 month.
My query is does employer insist staff to work for 1 month or 3 month as per policy without accepting the Salary in lieu of not serving the terms.
Any citation of court is the above matter is welcome , kindly revert with your valuable advise as its pertain to my own son case.
In my son case the Management is not accepting the resignation letter and giving the acknowledgement receipt.
Further in his Appointment letter it is mentioned ON CONFIRMATION to give 3 month Notice or Pay in lieu of the same.
The Management has change the policy intimating through E -Mail that from 1st April 13, Notice Pay in lieu of 3 month notice THE PRACTICE HAS BEEN STOP
Can Management resort to such practice by intimating through mail.?
Which Clause prevail Appointment letter clause OR E-Mail communication ?
What remedy is available if the Br Head is not giving the acknowledgement receipt ?
For your information there is NO Union is functioning in the establishment.
Kindly revert with your valuable advise.
Regards
Azim Charania
From India, Mumbai
Need your help in understanding the principle of resignation, if I am not wrong as per Any Establishment policy, it is either 1 month notice or 3 month on either side or 1 month pay or 3 month pay in lieu of not serving the terms of 1 month or 3 month.
My query is does employer insist staff to work for 1 month or 3 month as per policy without accepting the Salary in lieu of not serving the terms.
Any citation of court is the above matter is welcome , kindly revert with your valuable advise as its pertain to my own son case.
In my son case the Management is not accepting the resignation letter and giving the acknowledgement receipt.
Further in his Appointment letter it is mentioned ON CONFIRMATION to give 3 month Notice or Pay in lieu of the same.
The Management has change the policy intimating through E -Mail that from 1st April 13, Notice Pay in lieu of 3 month notice THE PRACTICE HAS BEEN STOP
Can Management resort to such practice by intimating through mail.?
Which Clause prevail Appointment letter clause OR E-Mail communication ?
What remedy is available if the Br Head is not giving the acknowledgement receipt ?
For your information there is NO Union is functioning in the establishment.
Kindly revert with your valuable advise.
Regards
Azim Charania
From India, Mumbai
Dear Umakanthan.M
Further to the thread more clarification is provided herein below
My Son has Join the establishment on 20th August 2012 & tendered the Hard Copy of resignation on 11th July 2013 in writing to Branch Head, he has till date has not given acknowledgement on the copy that resignation is received, unfortunately my Son has not mentioned the last working day but has mentioned to relive him, "As soon As possible". as he has got the job offer letter from Multinational Company based in UAE intimating my son to join the company by 1 August 2013.
The Present Company appointment letter state that on Confirmation 3 months notice on either side or in lieu of the same 3 month pay
While referring the resignation letter the Br head has verbally told my son that 3 month notice in lieu of Notice practice has been stopped from 1 April 2013 and you have to work for 3 months, there is No alternative.
As regards policy announcement it is done Generally prior to giving resignation letter of my son via Email from VP- HR Department and not now
My Son does not want to serve the complete notice period but is willing to settle the dues in lieu of the notice period.
Can Management resort to such practice by intimating through mail. about stoppage of Practice in lieu of Notice Period?
Which Clause prevail Appointment letter clause OR E-Mail Generally Announced ?
What remedy is available if the Br Head is not giving the acknowledgement receipt ?
Kindly revert as the time is running out as the 1 August 2013 is approaching very soon.
In case Br Head decline to give the acknowledgement copy,and my son does not full fill the terms of Notice periods either side as per Appointment letter
What Action can be contemplated by the Employer against my Son ? As stated in previous mail NO Union is functioning in the present establishment.
UAE Company does not need any relieving letter of present employer
Regards,
Azim Charania
From India, Mumbai
Further to the thread more clarification is provided herein below
My Son has Join the establishment on 20th August 2012 & tendered the Hard Copy of resignation on 11th July 2013 in writing to Branch Head, he has till date has not given acknowledgement on the copy that resignation is received, unfortunately my Son has not mentioned the last working day but has mentioned to relive him, "As soon As possible". as he has got the job offer letter from Multinational Company based in UAE intimating my son to join the company by 1 August 2013.
The Present Company appointment letter state that on Confirmation 3 months notice on either side or in lieu of the same 3 month pay
While referring the resignation letter the Br head has verbally told my son that 3 month notice in lieu of Notice practice has been stopped from 1 April 2013 and you have to work for 3 months, there is No alternative.
As regards policy announcement it is done Generally prior to giving resignation letter of my son via Email from VP- HR Department and not now
My Son does not want to serve the complete notice period but is willing to settle the dues in lieu of the notice period.
Can Management resort to such practice by intimating through mail. about stoppage of Practice in lieu of Notice Period?
Which Clause prevail Appointment letter clause OR E-Mail Generally Announced ?
What remedy is available if the Br Head is not giving the acknowledgement receipt ?
Kindly revert as the time is running out as the 1 August 2013 is approaching very soon.
In case Br Head decline to give the acknowledgement copy,and my son does not full fill the terms of Notice periods either side as per Appointment letter
What Action can be contemplated by the Employer against my Son ? As stated in previous mail NO Union is functioning in the present establishment.
UAE Company does not need any relieving letter of present employer
Regards,
Azim Charania
From India, Mumbai
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Legal Clarification on Absconding & Contract Labour.pdf