Date : 12 Nov, 2019
Post By Bhupender Tanwar
Absconding, in a layman language means secretly running away from a situation to escape custody or arrest.
But we must acknowledge that none of us might want to leave an organization leaving behind a bad reputation. If somebody is forced to an extent that they must abscond then it is important to understand the intentions and motives behind the actions. Usually, employees abscond if they have committed a breach of trust with the organization by sharing confidential information, documents or database to another party or if there is a lot of stress or work-pressure that an individual is unable to cope up with on a regular basis. One reason could also be that an employee found a new/better job which required them to join immediately and they feel that the procedure for separation from a company is difficult and tedious.
As per the Indian Contracts Act, no contract can be enforced on any person if the contract which is being enforced causes any harm to the person on whom it is enforced and if performed, it would violate principles of the natural justice. Employment is also a sort of contract and should be treated in the same manner.
A company expects the employee to serve his full notice period, assuming he might have some responsibilities which need handover. If there is a non-compliance to such an expectation the company can claim damages and compensation from the employee. The company has a right to penalize the absconding employee. As per Section 368 of Indian Penal Code if any person or institute holds back any document or any use any legal document or threatens any legal suits or actions and thus forces a person to perform any act against his wish or which is illegal or wrong as per the statute of Law of the land shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement.
The Supreme Court of India has clearly stated that no employee can be forcefully employed against his will, just because he has signed a contract with the employer. The court also has stated that the employer can not hold back any personal document of the employee as they are earned by the employee and the company has no claim on the same. And if there is no bond, then the company cannot claim anything from any employee.
An employer can send a legal notice to an employee for absconding subject to reasons mentioned by the employer.
Legal action against absconding employee who resigns and fails to provide with the minimum period of notice could be taken. The other action that the company might take against the absconding employee includes avoiding issuing exit related documents such as relieving letter, full & final settlement statement, service or experience certificate and mark that employee as an absconder.
What can be done?
If the clause has been mutually accepted the company has every right to recover the notice pay.
If the employee decided to pay the claim made by the organization, then it will be appropriate on the employers’ end to issue a relieving letter.
How can a legal notice received by an employer be replied to?
It is very important to reply to the legal notice that the employer sends in such a case to safeguard your career and avoid any litigation that may result out to be very expensive and time-consuming.
Cross-checking your notice with an experienced attorney may help you keep your points forward in a just and apt manner so that the organization understands the reason behind your actions or the experienced lawyer can also find out loopholes in the contracts that can help employees get there justified salary without any further complications provided the employee isn’t wrong.
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