Hello I am the company secretary of a company, here I got some cases, where employee leaves the company without serving the Notice Period and company wants to file a civil case in order to ask the money for not serving the notice period My question is can we file a case and get the money from them.
From India, Delhi
From India, Delhi
The terms of appointment letter are critical.
If the terms specify a notice period or pay in lieu then you can file a civil suit for recovery of notice period pay.
Leaving without notice is breach of contract and civil remedies exist.
SBCWP No.5988/2006 – Manohar Singh vs. Union of India & ors.
Judgment dt;30/4/2014
Read this case it has some bearing on your query of recovery of notice period pay.
From India, Pune
3131If the terms specify a notice period or pay in lieu then you can file a civil suit for recovery of notice period pay.
Leaving without notice is breach of contract and civil remedies exist.
SBCWP No.5988/2006 – Manohar Singh vs. Union of India & ors.
Judgment dt;30/4/2014
Read this case it has some bearing on your query of recovery of notice period pay.
From India, Pune
Dear Deepak,
This is in addition to what Mr Nathrao has written. You need to clarify further about your post. Please tell us:
a)What is the clause mentioned in the appointment letter about notice period?
b) Are you referring employees who abandon the employment?
c) Are you referring employees who follow normal process of exit but neither complete notice period nor pay in lieu of notice period?
d) Employees referred in point (c) above, do they take final clearance from all the departments? If yes, why HR department does not check clauses mentioned in the appointment letter and asks for the payment in lieu of notice period?
e) For the employees referred in point (c) above, does HR department issues Service-cum-Employment Certificate?
f) If employees quit without fulfilling the conditions specified in the appointment letter then it is a breach of contract. Nevertheless, what about your company? Does it follow all the labour laws in its right earnest or your hands are also equally muddied but wanted to refer the pages of appointment letter with those stained hands?
g) Is company's labour compliance record is so bad that employees wish to inflict some collateral damage while quitting employment?
HR Standpoint: - While the help of law is necessary to run an enterprise, law cannot be the foundation to run a company. The foundation is organisation's culture. If employees quit without fulfilling the conditions of employment then what is the percentage of such employees? Has HR Department done any study to know why things come to such a pass? Why company's brand means nothing to the employees? What employee engagement activities are carried out to retain the right employees? Those who quit, what is the level of their performance? Did you lose bright or excellent employees?
Final comments: - Gentleman, there is a great scope to improve the quality of your post. By reading your post, one gets a feel that the post is written by ordinary secretary and not by Company Secretary. We give meaning to our qualification or designation by the way we interact. Hope you are aware of this age old rule of professionalism.
Thanks,
Dinesh Divekar
From India, Bangalore
This is in addition to what Mr Nathrao has written. You need to clarify further about your post. Please tell us:
a)What is the clause mentioned in the appointment letter about notice period?
b) Are you referring employees who abandon the employment?
c) Are you referring employees who follow normal process of exit but neither complete notice period nor pay in lieu of notice period?
d) Employees referred in point (c) above, do they take final clearance from all the departments? If yes, why HR department does not check clauses mentioned in the appointment letter and asks for the payment in lieu of notice period?
e) For the employees referred in point (c) above, does HR department issues Service-cum-Employment Certificate?
f) If employees quit without fulfilling the conditions specified in the appointment letter then it is a breach of contract. Nevertheless, what about your company? Does it follow all the labour laws in its right earnest or your hands are also equally muddied but wanted to refer the pages of appointment letter with those stained hands?
g) Is company's labour compliance record is so bad that employees wish to inflict some collateral damage while quitting employment?
HR Standpoint: - While the help of law is necessary to run an enterprise, law cannot be the foundation to run a company. The foundation is organisation's culture. If employees quit without fulfilling the conditions of employment then what is the percentage of such employees? Has HR Department done any study to know why things come to such a pass? Why company's brand means nothing to the employees? What employee engagement activities are carried out to retain the right employees? Those who quit, what is the level of their performance? Did you lose bright or excellent employees?
Final comments: - Gentleman, there is a great scope to improve the quality of your post. By reading your post, one gets a feel that the post is written by ordinary secretary and not by Company Secretary. We give meaning to our qualification or designation by the way we interact. Hope you are aware of this age old rule of professionalism.
Thanks,
Dinesh Divekar
From India, Bangalore
Normally,companies don't go for that.They will not provide you any relieving letter/Experience letter.They will not co-operate to withdraw PF Amount. One intimation letter may be issued in absconding case.
Thanks,
Shashi Jha
From India, Madras
Thanks,
Shashi Jha
From India, Madras
Dear Dinesh Divekar
thank you very much for your comments
lets talk about the situation
I am talking about the employees who has signed the bond to work for the company for atleast year and to serve the Notice period of 60 days otherwise company would hold the salary of 2 months. My question is whether we can file a case against those employees to get the Notice period amount ???
hope this is in understandable order
From India, Delhi
thank you very much for your comments
lets talk about the situation
I am talking about the employees who has signed the bond to work for the company for atleast year and to serve the Notice period of 60 days otherwise company would hold the salary of 2 months. My question is whether we can file a case against those employees to get the Notice period amount ???
hope this is in understandable order
From India, Delhi
Dear Deepak,
Letter of Appointment is a contract between employer and employee under the provisions of Indian Contract Act, 1872. Did your company enter into some additional agreement with the employee? In that case, Mr Nathrao has cited the case wherein you can sue the employee.
Though you have given some additional information, you have not specified the role of HR in allowing employees to quit without notice period. If employees abandon the employment then why issue the service-cum-employment certificate to such employees? To avoid break in the employment, employees are forced to work as per the terms of appointment.
What is the percentage of employees who abandon the employment? If the percentage is miniscule then why not to ignore their truancy rather than taking course of litigation?
Last but not the least, if the newly hired persons are unable to stick to the company even for a year then this speaks of wrong hire. You need to overhaul your recruitment process. This is far economical compared with litigation. Secondly, if the organisation's culture fails to act as glue so as to retain the employees then malaise could lie with it also. Cultural flaws cannot be addressed through litigation. If the employees start fulfilling the conditions of their employment and they start paying as per the notice period, even then also the cost of attrition would be far higher than the gains made by this recovery. Therefore, look at the larger issues than drawing solace from the completion of accounting exercise!
Thanks,
Dinesh Divekar
From India, Bangalore
Letter of Appointment is a contract between employer and employee under the provisions of Indian Contract Act, 1872. Did your company enter into some additional agreement with the employee? In that case, Mr Nathrao has cited the case wherein you can sue the employee.
Though you have given some additional information, you have not specified the role of HR in allowing employees to quit without notice period. If employees abandon the employment then why issue the service-cum-employment certificate to such employees? To avoid break in the employment, employees are forced to work as per the terms of appointment.
What is the percentage of employees who abandon the employment? If the percentage is miniscule then why not to ignore their truancy rather than taking course of litigation?
Last but not the least, if the newly hired persons are unable to stick to the company even for a year then this speaks of wrong hire. You need to overhaul your recruitment process. This is far economical compared with litigation. Secondly, if the organisation's culture fails to act as glue so as to retain the employees then malaise could lie with it also. Cultural flaws cannot be addressed through litigation. If the employees start fulfilling the conditions of their employment and they start paying as per the notice period, even then also the cost of attrition would be far higher than the gains made by this recovery. Therefore, look at the larger issues than drawing solace from the completion of accounting exercise!
Thanks,
Dinesh Divekar
From India, Bangalore
Is your bond related to any special training activity or just a bond asking for minimum 12 months employment?
Again as learned poster Shri Dinesh mentioned-is attrition rate so high that you are thinking in terms of suing employees for breach of contract.
Look inwards at your company culture,work atmosphere and comparative salaries etc to see the reason for quick exits.
Self introspection may prove a more viable and constructive approach,than enriching a lawyer and being known in the job market as a company who sues to retain and cannot retain without bonds and Fevicol of legal threats.
From India, Pune
Again as learned poster Shri Dinesh mentioned-is attrition rate so high that you are thinking in terms of suing employees for breach of contract.
Look inwards at your company culture,work atmosphere and comparative salaries etc to see the reason for quick exits.
Self introspection may prove a more viable and constructive approach,than enriching a lawyer and being known in the job market as a company who sues to retain and cannot retain without bonds and Fevicol of legal threats.
From India, Pune
Hello Deepak_6,
Without getting into the points touched upon by Dinesh & Nathrao, pl note that there are so many gaps in the inputs you provided.
Consequently, I presume you understand that ANY & EVERY suggestion given by any member would be EITHER non-actionable OR misleading.
Can give more details about the situation/issue like:
1] What's the sector/domain your Company is in?
2] What's the Employee strength?
3] Since when are you facing this problem?
4] Like Dinesh pointed-out, w.r.t your line--"employee leaves the company without serving the Notice Period", WHAT'S the true scenario? Meaning is this a case of the employees absconding OR resigning & leaving without serving the full notice period [meaning only partial serving of NP] OR resigning & leaving without serving even a single day of notice period OR something else?
5] You say that you are a Company Secretary. So I presume you do have some knowledge of Law & the issues thereof. Hence your last line, frankly, surprises me--"My question is can we file a case and get the money from them". You very well ought to know that any & every Tom, Dick & Harry CAN file cases.....NOT just civil suits but also Criminal ones. But whether the desired end-result will come about depends on a LOT of issues, angles & aspects--some/many which WON'T be in your control.
Just ask YOURSELF the same question--what are the chances for such a step ensuring that you get the/any money back....especially in a Civil case? 90%? 50%? 20%? 10%? I am sure you know it can NEVER be 100%. So the choice is your's [or rather the Company's] on the next step to take.
Also going by what you have mentioned so far, I THINK the Company has MANY skeletons in their cupboards....which are bound to tumble out when the ex-employees begin to 'sing' in the Court, and come into public domain. Would the Company be ready for this scenario--IF it becomes a reality?
And another aspect that Companies [or their advisers] very easily forget is this: the damage such immature & incomplete steps cause to the Company's image. Do you think your future hiring activities will meet success? And more specifically IF you are in IT sector, you can also be sure that you can forget about your clients.....I guess you can guess the answer 'why'.
Suggest advise your management to think 'thru the head' rather than 'thinking thru the heart' in such issues--very easy to get carried away.
All the Best.
Rgds,
TS
From India, Hyderabad
Without getting into the points touched upon by Dinesh & Nathrao, pl note that there are so many gaps in the inputs you provided.
Consequently, I presume you understand that ANY & EVERY suggestion given by any member would be EITHER non-actionable OR misleading.
Can give more details about the situation/issue like:
1] What's the sector/domain your Company is in?
2] What's the Employee strength?
3] Since when are you facing this problem?
4] Like Dinesh pointed-out, w.r.t your line--"employee leaves the company without serving the Notice Period", WHAT'S the true scenario? Meaning is this a case of the employees absconding OR resigning & leaving without serving the full notice period [meaning only partial serving of NP] OR resigning & leaving without serving even a single day of notice period OR something else?
5] You say that you are a Company Secretary. So I presume you do have some knowledge of Law & the issues thereof. Hence your last line, frankly, surprises me--"My question is can we file a case and get the money from them". You very well ought to know that any & every Tom, Dick & Harry CAN file cases.....NOT just civil suits but also Criminal ones. But whether the desired end-result will come about depends on a LOT of issues, angles & aspects--some/many which WON'T be in your control.
Just ask YOURSELF the same question--what are the chances for such a step ensuring that you get the/any money back....especially in a Civil case? 90%? 50%? 20%? 10%? I am sure you know it can NEVER be 100%. So the choice is your's [or rather the Company's] on the next step to take.
Also going by what you have mentioned so far, I THINK the Company has MANY skeletons in their cupboards....which are bound to tumble out when the ex-employees begin to 'sing' in the Court, and come into public domain. Would the Company be ready for this scenario--IF it becomes a reality?
And another aspect that Companies [or their advisers] very easily forget is this: the damage such immature & incomplete steps cause to the Company's image. Do you think your future hiring activities will meet success? And more specifically IF you are in IT sector, you can also be sure that you can forget about your clients.....I guess you can guess the answer 'why'.
Suggest advise your management to think 'thru the head' rather than 'thinking thru the heart' in such issues--very easy to get carried away.
All the Best.
Rgds,
TS
From India, Hyderabad
thanks all
let me precise the situation
Mr. X who was appointed as Accountant. He was supposed to serve 60 days notice period for resignation otherwise company would be eligible to get 2 months salary.
He was asked to transfer the services in another state which he accepted, however he left on 20.04.2015 and never came back.
what would be the remedy for us??
moreover how can we stop such cases from the legal point of view means what should be clauses or other things which can be treated as valid before the court ?
From India, Delhi
let me precise the situation
Mr. X who was appointed as Accountant. He was supposed to serve 60 days notice period for resignation otherwise company would be eligible to get 2 months salary.
He was asked to transfer the services in another state which he accepted, however he left on 20.04.2015 and never came back.
what would be the remedy for us??
moreover how can we stop such cases from the legal point of view means what should be clauses or other things which can be treated as valid before the court ?
From India, Delhi
One can file a civil suit for recovery of notice period pay,provided it is spelt out clearly in appointment letter.
One cannot really stop people from absconding-your offer/appointment letter may be legally water tight,but still there will be a few who breach the contract.
One must take a broader view on such breaches.
What is the effect on the company when such things happen?
Like your Accountant has left,but has he handed over all accounts,property held by him?
Our judicial system is slow and remedy is worse than disease.
Make your company a happy place to work,then people will willingly continue.
First an in house examination of how happy employees are should be done discreetly.
Tell your managers to be mixing around and approachable for his subordinates.
People sometimes do not leave the company,they quit because of attitudes of immediate manager.
The problems appears to be more of lack of employee engagement than a legal issue.
From India, Pune
One cannot really stop people from absconding-your offer/appointment letter may be legally water tight,but still there will be a few who breach the contract.
One must take a broader view on such breaches.
What is the effect on the company when such things happen?
Like your Accountant has left,but has he handed over all accounts,property held by him?
Our judicial system is slow and remedy is worse than disease.
Make your company a happy place to work,then people will willingly continue.
First an in house examination of how happy employees are should be done discreetly.
Tell your managers to be mixing around and approachable for his subordinates.
People sometimes do not leave the company,they quit because of attitudes of immediate manager.
The problems appears to be more of lack of employee engagement than a legal issue.
From India, Pune
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