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
22Employee 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
Dear White Eagle,
1.Is it legal and right for company to ask for recovery of notice period in absconding cases? Please provide reason.
As the clause has been mutually accepted the company has every right to recover the notice pay.
2) In above case after clearing notice period dues, Is employee entitled for reliving letter? Why?
The clause states that 1 month notice or salary in lieu of notice. The employee has paid you the notice pay. So it will be appropriate on your part to issue him a relieving letter.
3) How absconding termination is different from other terminations (from notice period angle)
Termination done by the employer is done for poor performance or misconduct warranting termination of service. In absconding cases this question does not arise the only error committed by him is failure to report for work. It is cessation of service similar to resignation and cannot be deemed as termination.
If you view it as termination then it will mean that you will be required to pay the notice pay instead of the employee as the act is on your part and not on employees part. So it will be wise on your part to receive the notice pay and issue him a relieving letter.
Trust matter is clarified
M.V.KANNAN
From India, Madras
1.Is it legal and right for company to ask for recovery of notice period in absconding cases? Please provide reason.
As the clause has been mutually accepted the company has every right to recover the notice pay.
2) In above case after clearing notice period dues, Is employee entitled for reliving letter? Why?
The clause states that 1 month notice or salary in lieu of notice. The employee has paid you the notice pay. So it will be appropriate on your part to issue him a relieving letter.
3) How absconding termination is different from other terminations (from notice period angle)
Termination done by the employer is done for poor performance or misconduct warranting termination of service. In absconding cases this question does not arise the only error committed by him is failure to report for work. It is cessation of service similar to resignation and cannot be deemed as termination.
If you view it as termination then it will mean that you will be required to pay the notice pay instead of the employee as the act is on your part and not on employees part. So it will be wise on your part to receive the notice pay and issue him a relieving letter.
Trust matter is clarified
M.V.KANNAN
From India, Madras
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
From India, Hyderabad
My dear White Eagle
I have gone through the discussions; and I find the responses as fair and appropriate.
Now, I would lke to know your views on the following questions :
Why are you insisting on a SC/HC judgement, 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 judgements for everything in life ?
Do you need any SC/HC judgements to post your queries in this forum ?
Well, I think it is ridiculous to demand judgements 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
I have gone through the discussions; and I find the responses as fair and appropriate.
Now, I would lke to know your views on the following questions :
Why are you insisting on a SC/HC judgement, 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 judgements for everything in life ?
Do you need any SC/HC judgements to post your queries in this forum ?
Well, I think it is ridiculous to demand judgements 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
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
From India, Mumbai
Hi,
In managerial functions, there is a need to use our own brain rather than trying to walk only after getting hold of some one else's finger, as like a young baby.
We must not stop performing our duties & responsibilities in looking forward for SC or HC judments on every trivial matter.
From India, Delhi
In managerial functions, there is a need to use our own brain rather than trying to walk only after getting hold of some one else's finger, as like a young baby.
We must not stop performing our duties & responsibilities in looking forward for SC or HC judments on every trivial matter.
From India, Delhi
@ White Eagle,
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 notice period is not a mandatory option & 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 & the company can be taken to court. Ideally the company should contemplate if they have accept the notice period due or other options before accepting the due amout lieu.
From India, Madras
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 notice period is not a mandatory option & 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 & the company can be taken to court. Ideally the company should contemplate if they have accept the notice period due or other options before accepting the due amout lieu.
From India, Madras
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
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
Hi all, just wanted to know from the person who started the discussion two things?
whether you are terminating him or
a resignation letter is received from the absconding person.
If you are terminating an employee, that accounts to punishment and seriously requires a domestic inquiry on the same.
have you given proper and fair chance to the employee to prove his cause. does your standing orders have a clause regarding unauthorised absence, have you given a chargesheet for the misconduct. These will prove to be helpful in the separation of the employee properly.
If it is a resignation then there is no complication.
From India, Mumbai
whether you are terminating him or
a resignation letter is received from the absconding person.
If you are terminating an employee, that accounts to punishment and seriously requires a domestic inquiry on the same.
have you given proper and fair chance to the employee to prove his cause. does your standing orders have a clause regarding unauthorised absence, have you given a chargesheet for the misconduct. These will prove to be helpful in the separation of the employee properly.
If it is a resignation then there is no complication.
From India, Mumbai
Absence From duty
The Bombay Shops and Establishments Act Sec 66 proviso (a) says that notice of termination is not required under Sec 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 has to be in tune with the above legal requirement.
Relieving letter means relieving the employee from the Service of the Employer.It can happen on resignation,termination or absconding.If the employer does not wish to issue relieving letter in absconding cases then experience certificate can be issued.
Recovery of Notice pay can be done for high end jobs and not for jobs where the salary is equal to the minimum wage or just above it.The employer has to expect such eventuality. Many absconders have real reason to do it.
With Regards
Advocates & Notaries & Legal Consultants[HR]
E-mail : rajanassociates@eth,net,
-9025792684-9025792634
more at https://www.citehr.com/285737-legal-...#ixzz18a5NY4LA
From India, Bangalore
The Bombay Shops and Establishments Act Sec 66 proviso (a) says that notice of termination is not required under Sec 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 has to be in tune with the above legal requirement.
Relieving letter means relieving the employee from the Service of the Employer.It can happen on resignation,termination or absconding.If the employer does not wish to issue relieving letter in absconding cases then experience certificate can be issued.
Recovery of Notice pay can be done for high end jobs and not for jobs where the salary is equal to the minimum wage or just above it.The employer has to expect such eventuality. Many absconders have real reason to do it.
With Regards
Advocates & Notaries & Legal Consultants[HR]
E-mail : rajanassociates@eth,net,
-9025792684-9025792634
more at https://www.citehr.com/285737-legal-...#ixzz18a5NY4LA
From India, Bangalore
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