Dear Experts
One of the employees is indulged in the theft of company's properties and he is now in interrogation or to say in preliminary enquiry process. In the meanwhile an another employee had submitted resignation of one month notice whereas there is also a suspicion of involvement in the said theft incidence on the said employee who submitted resignation. In this regard I request the expert views on the following lines:
1. whether the management can deny acceptance of the resignation letter of the employee who submitted resignation?
2. is it necessary for the management to accept the resignation and relieve him on expiry of notice period?
3. In the event of the said resigned employee not reporting for work after submission of resignation what would be the course of action to be taken against him?
4. If we accept his resignation whether the Management can say in the relieving order that this relieving is without prejudice to reserve the right of the Management taking legal criminal action, if any, in the case of indulgence of theft on employee part is noticed after conclusion of the preliminary enquiry process?
5. Any other valuable suggestion please.
Thanks & regards,
V Sridharan
From India, Mumbai
25One of the employees is indulged in the theft of company's properties and he is now in interrogation or to say in preliminary enquiry process. In the meanwhile an another employee had submitted resignation of one month notice whereas there is also a suspicion of involvement in the said theft incidence on the said employee who submitted resignation. In this regard I request the expert views on the following lines:
1. whether the management can deny acceptance of the resignation letter of the employee who submitted resignation?
2. is it necessary for the management to accept the resignation and relieve him on expiry of notice period?
3. In the event of the said resigned employee not reporting for work after submission of resignation what would be the course of action to be taken against him?
4. If we accept his resignation whether the Management can say in the relieving order that this relieving is without prejudice to reserve the right of the Management taking legal criminal action, if any, in the case of indulgence of theft on employee part is noticed after conclusion of the preliminary enquiry process?
5. Any other valuable suggestion please.
Thanks & regards,
V Sridharan
From India, Mumbai
You can accept the resignation on one condition, ie, relieving pending decision by the disciplinary authority. This will give a message that he cannot get an easy walkover but his exit will depend upon the decision of the Disciplinary authority for which he should be available and he should cooperate. If he absents himself then his relieving will not happen. At the same time, if he cooperates, the enquiry will happen in time and if he is found not guilty, he can get relieved with a very good endorsement of his good service. But if he does not cooperate the decision will have to be taken ex partie and he would be terminated based on the reports. This will certainly spoil his career. Therefore, educate him of the consequences.
From India, Kannur
From India, Kannur
Hi,
Till the completion of notice period the employment relationship, including all rights and obligations, exits. Therefore, an employer can pursue disciplinary action against the employee. The proceedings must, however, be concluded within the notice period; that is, the employee must be heard and judgment delivered to validate the findings of the process. If the employee is found guilty before the notice period's expiry, and the employer terminates the employment contract, such termination will be reflected as a dismissal and not resignation.
If the employee is relieved after the completion of notice period there is no longer a employee-employer relationship to support any disciplinary proceedings
From India, Madras
Till the completion of notice period the employment relationship, including all rights and obligations, exits. Therefore, an employer can pursue disciplinary action against the employee. The proceedings must, however, be concluded within the notice period; that is, the employee must be heard and judgment delivered to validate the findings of the process. If the employee is found guilty before the notice period's expiry, and the employer terminates the employment contract, such termination will be reflected as a dismissal and not resignation.
If the employee is relieved after the completion of notice period there is no longer a employee-employer relationship to support any disciplinary proceedings
From India, Madras
The response to your queries is as follows:
1. The resignation can be rejected when a disciplinary inquiry is in progress or is contemplated. This is the general law on the subject.
2. It is not necessary for the management to accept the resignation, the management can reject the resignation and state the reasons for the same.
3. Reply to the employee rejecting the resignation, ask the employee to return back on duty, and tell in clear terms that the absence is unauthorised and a separate action could lie for it.
4. Yes, it can be mentioned so. But it will not be a solution to the problem.
5. It is necessary to take strong action in such matters as otherwise it is setting a bad precedent, as though anything can be done and on the verge of being caught submit a resignation and get away from the scene. This will not be a decisive action. Expedite the preliminary inquiry and decide the matter accordingly.
From India, Mumbai
1. The resignation can be rejected when a disciplinary inquiry is in progress or is contemplated. This is the general law on the subject.
2. It is not necessary for the management to accept the resignation, the management can reject the resignation and state the reasons for the same.
3. Reply to the employee rejecting the resignation, ask the employee to return back on duty, and tell in clear terms that the absence is unauthorised and a separate action could lie for it.
4. Yes, it can be mentioned so. But it will not be a solution to the problem.
5. It is necessary to take strong action in such matters as otherwise it is setting a bad precedent, as though anything can be done and on the verge of being caught submit a resignation and get away from the scene. This will not be a decisive action. Expedite the preliminary inquiry and decide the matter accordingly.
From India, Mumbai
Dear Sridhar,
A contract of employment can be unilaterally foreclosed by an employee at his will by means of a formal resignation subject to the compliance of the exit clause and the employer has no discretion in this regard unless certain charges of misconduct are either contemplated or pending or his services are highly indispensable for the time being in the interest of the organization.
From your narrative, what is discernible is that the employee who has submitted his resignation has not yet been indicted in the theft charges either as one of the offenders or as an accomplice. But his sudden resignation raises the doubt whether he would have a hand in the offence and to avoid any disciplinary action in this regard he could have offered to resign. Mere suspicion cannot take the place of proof. The value of the property stolen, whether the theft was in a single attempt or done on different dates by the employee against whom the preliminary inquiry is in progress, the preponderance of the probability of connivance on the part of the resigning employee by virtue of his official position and relationship with the accused etc., are the factors for the arousal of such a suspicion. Therefore, the employer cannot reject the resignation merely because its submission coincides with the inquiry into the theft of the company's property by another employee.
In the absence of concrete evidence, if any, if his resignation is rejected and he is also indicted it would tantamount to coercion. On the other hand, if the resignation is accepted conditionally so mentioned by Mr.Madhu, the employer loses his disciplinary control over a resigned employee except upon charges of monetary loss or damage to the employer's property if it comes to light later. Even the employee's formal and peaceful separation cannot be a bar on his conviction in a criminal proceedings instituted against him later.
From India, Salem
A contract of employment can be unilaterally foreclosed by an employee at his will by means of a formal resignation subject to the compliance of the exit clause and the employer has no discretion in this regard unless certain charges of misconduct are either contemplated or pending or his services are highly indispensable for the time being in the interest of the organization.
From your narrative, what is discernible is that the employee who has submitted his resignation has not yet been indicted in the theft charges either as one of the offenders or as an accomplice. But his sudden resignation raises the doubt whether he would have a hand in the offence and to avoid any disciplinary action in this regard he could have offered to resign. Mere suspicion cannot take the place of proof. The value of the property stolen, whether the theft was in a single attempt or done on different dates by the employee against whom the preliminary inquiry is in progress, the preponderance of the probability of connivance on the part of the resigning employee by virtue of his official position and relationship with the accused etc., are the factors for the arousal of such a suspicion. Therefore, the employer cannot reject the resignation merely because its submission coincides with the inquiry into the theft of the company's property by another employee.
In the absence of concrete evidence, if any, if his resignation is rejected and he is also indicted it would tantamount to coercion. On the other hand, if the resignation is accepted conditionally so mentioned by Mr.Madhu, the employer loses his disciplinary control over a resigned employee except upon charges of monetary loss or damage to the employer's property if it comes to light later. Even the employee's formal and peaceful separation cannot be a bar on his conviction in a criminal proceedings instituted against him later.
From India, Salem
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