SPKR
Consultant In Education, Real Estate, Home
Mnsahu
General Manager, Corporate Hr
Vrushy
Hr Executive
Korgaonkar K A
Ba,llb,mpm,dir&pm,dll&lw,d.cyber
Akatrap
Payroll, Domestic Inquiry, Administration,
Vivian Chandrashekar
Aast. Gen. Manager-hr
Deepak_medekar@yahoo.co.in
H.r Manager At Vasai.
Srinu_p1111
Hr Manager
Amit Adhav1986
Compliance
+3 Others

Dear Sir,
If employees are on illegal strike for more than 90 Days,
Can we terminate them on basis of absenteeism without prior intimation ?
If yes then , please share some procedure and format.
Regards,
Vrushy
16th September 2013 From India, Nasik
As Mrugen has rightly said, before coming to any conclusion call all the employees or their representatives ask their demands and reason for illegal strike, sort it out amicable across the table. Please ensure that a Management representative/decision maker should be accompanying you. Also check whether they have formed any union
16th September 2013 From India, Ahmadabad
Dear Vrushy ji,
In ID Act, there is a provision for penalties under chapter VI. Section 26 deals with penalty for illegal strike / lockouts. ID Act does not say any thing on punishment by way of dismissal.
However, there are some case laws on this subject.
Bata Vs. DM Ganguly 1961 I LLJ 303: Participation in illegal strike nay not necessarily and in every case be punished with dismissal. Where enquiry has been properly held and employer has imposed punishment of dismissal should not interfere unless it finds unfair labour practice or victimization against the employee.
Experts are requested to comment.
17th September 2013 From India, Mumbai
Dear Vrushy,
yes you can terminate the employee but you have to follow the principals of natural justice you have to conduct domestic enquiry.
please check whether the employee is protected workmen or not.
17th September 2013 From India, Velluru
Dear Vrushy,

From your question, one thing is not clear i.e. how can a single person be called to be on Illegal Strike continuously for 90 days without giving any notice or application stating his grievances which he is demands to be redressed.

What I understand is that the employee is an individual not a group. The employee is a permanent employee. If so, he may be said to be on unauthorized absence. In such case, you have to give him atleast 2 chances to explain the reasons for his such prolonged absence. Both letters are to be sent under Regd. or Speed Post, giving a reasonable gap between the two, on his Home Address available with the Company. If no reply is received within the given period limit (say 15 days of receipt of letter), An Inquiry Committee may be constituted by the Disciplinary Authority and a Final Notice, to the erring employee to report for duty within 15 days, may be sent clearly stating that failing which the inquiry proceedings with be decided Ex-parte, without any further reference.

After observing these formalities of "Natural Justice" the Disciplinary Authority may ask the I.O. to conclude the inquiry proceedings Ex-Parte giving his findings/conclusion. Then D.A. may order for termination and the Order may be issued under his signature accordingly.

Best wishes.

AK Jain

HR Personnel, NCL, CIL
17th September 2013 From India, Jabalpur
Dear Vrushy,
If only one employee is not coming to work i.e. absence without prior approval and please check the terms & conditions of the appointment letter, I am sure it would have been mentioned in the letter. If not pleae follow the the process mentioned by Mr AK Jain sending communication to the individual through registered post. Send two communication giving sufficent time to respond i.e. one week on receipt of the letter, and please do mention in the second communication clearly that if he is not reponding his employment with the organzation will stand cancelled / terminated. And send third communication with termination letter.
As you have not clearly mentioned about your organization, the above you may implement in case your organizaton registered under S&E Act. If you are working for an Industry the process mentioned by Mr AK Jain would be applicable as per Industrial Disputes Act.
Thanks
Srinu Kumar
17th September 2013 From India, Hyderabad
Dear Vrushi,
Please let us know whether you get the order from Ind. Court declaring the strike as illegal. If yes, then whether the strike was withdrawn immediately within 24 hours, if yes, then it will not be illegal strike.
Only participating in illegal strike will not be amount to dismissal, which would be harsh punishment.
It need to club all the charges like indiscipline, disobeying legal orders of superior, threatening to co-employees, distroying / sabotage the property of company, etc.
You need to issue the chargesheet, conduct the domestic enquiry, observe priciple of natural justice.
Give chance to the concern employees to defend themselve, issue the enquiry report to them and second show cause notice.
Then based on direction of the Management you can issue dismissal order for the concerned employees.
Regards,
Avinash K.
17th September 2013 From India, Mumbai
A case for action agaisnt striking employees will survive only when the strike is illegal. You cannot take action for participating in legal strike. Who declared the strike illegal ? If the strike is decalred illegal, even then you cannot directly terminate the servcies of workmen. You need to serve chargesheets on the employees concerned and conduct departmental enquiry as some learned members above suggested to prove their guilt. Even then, the penalty of dismissal for mere participation in strike may not be considered proportionate unless it is coupled with some violence or gross violation of discipline, as Avinash said.Further you must have some evidence that the employees are continung strike despite your request to resume duties.

Strike is a slippery path and one should walk carefully on it. When employees in concert go on strike, it is an industrial relations problem and You need to assess the feasibility of conducting domestic enquiries enmass and consequencies of initiating disciplinary action against so many employees at a time on production, probable security issues and future litigation etc.Please do your ground work well since any extreme action in such cases may lead to litigation.

B.Saikumar

navi Mumbai
17th September 2013 From India, Mumbai
Dear .
For legal strike you have to wait till court decision . Management can not take any action when the matter is in the court. About illegal strike , the management can take action on the ground of absenteeism .
As expert says that to follow the principal of natural justice it is true and mandatory because you need to give ample opportunity to the employee . About termination , the domestic inquiry is must .On the basis of findings given by inquiry officer , the management can take a call for dismissal .
Thanks .
Deepak M.
18th September 2013 From India, Thana
Following actions are ought to be taken in the event it is established that strike was illegal:
1) Action under section 25U, 26 and 27 of the ID Act, 1947.
2) Disciplinary Actions in terms of Certified Standing Orders.
3) No work no pay.
18th September 2013 From India, Pune
Dear Vrushy,

No doubt all Industrial establishment in India comes under purview of Industrial Disputes Act 1947. No doubt all such disputes are supposed to be resolved under this act.

Before jumping to any conclusion, you are supposed to examine the following issues.

1. Do you have a case to call the strike as illegal ?

2. Whether the issue related to the strike is not acceptable or cannot be resolved.

3. Whether the Management is so adamant to call the strike as illegal ?

4. Whether the employees are working on Contract or permanent basis ?

5. Whether your industry is having separate service/Disciplinary rules ?

If you and your Management is so keen in termination , by declaring the strike as illegal, nothing forbids the management to declare the strike as illegal and terminate the employees as per law. But the as HR manager, onus lies on you to bear the after effects of prolonged legal battle, settlements through Labour courts and also Civil courts. This will be long drawn process.

Secondly,

As HR Manager you should think of the Social Responsibility also. By terminating the Striking employees, you will be robbing their lively hood. Will it be a right step to punish.What will happen to their future life? Termination means it is punishment for indiscipline, therefore terminated employees may not be eligible for any gratuity. They will get only PF savings.

If the Management is not interested to keep the litigants and interested to replace the litigant veterans, this can be done, by inviting them to reconciliation and giving them a warm shake hands: this may leads to paying some compensation for loss of job and also saving the man hour loss. By doing so, Management can save its face, stabilize its production, it can rework its production strategy, it can employ

fresh young lab our or it can get its work done through private players.

Third option

is to examine the issue in calm and transparent manner, so that disputes can be resolved peacefully. This increases the morale of the workmen.Please remember that your Industry has earned every pie, because of the workers.Therefore their contribution cannot be ignored, even though they are rough,litigants, as owner we have to pardon them and take back them to work.

I hope you may agree with my suggestions

SPKR

18.9.13
18th September 2013 From India, Bangalore
Dear SPKR,
I appreciate the detailed overview you have expressed. It shows your depth in IR matters. Good. The only thing I would like to differ on is that Gratuity will not be forfeited in case of termination on a/c of illegal strike. Only the period of strike will be deducted from the total tenure of service rendered. Gratuity can be forfeited only in case of termination on grounds of moral turpitude. Hope you and all others will agree. Correct me if I am wrong please.
AK Jain
HR Personnel
NCL, CIL.
19th September 2013 From India, Jabalpur
Hello SPKR
You have given a direction relevant to the issue. I too am on the same page with you that a strike situation shall be dealt with from IR angle and solutions to be found within the four corners of IR like negotiation rather than from the disciplinary angle or legal angle which may compound the issue.They may be the last resort.Furher, the mangement is not the competent authority to dub a strike legal or illegal and the legal validity itself is a legal issue, involving much legal wrangling.That's why I said in my post that it is a very slippery path and the employer needs to put each step carefully.
B.Saikumar

19th September 2013 From India, Mumbai
Right Said, you should follow the procedure of domestic inquiry before terminating employee.
23rd September 2013 From India, Pune
Dear All,
Sai Kumar has stated the provisons of law/procedure following princilpes of natural justice before termination. Before dismissing, the provisons of Section 33 of Industrail Dsputes Act 1947 needs to be reffered as the case may attract approval/permission.
As the case may be, if any provisons attract section 33 and dismissal is not followed the required provisons,the termination be illegal.
M.N.Sahu
GM(HR)
25th September 2013 From India, Vadodara
Dear All,
90% of the workmen around 50 of a factory in Karnataka are on illegal strike and sitting inside the factory for last 8 days by not doing any work. 13 of them are dismissed and illegal strike continues. The management is functional by having an injunction order from Civil court by only 10% of workmen with few contract workmen are working. How do we legally evict this workmen? The factory is functional on Model standing orders. Excluding the principal of “No work and no pay” and disciplinary action, how to put them out legally if they don’t leave? Management is not willing to recognize the Union or discuss with them and without Union, things should move forward. Please share your expertise. If any of you desire to discuss privately you may call me on 9916138191 (Bangalore) or mail me at .
15th October 2016 From India, Bangalore
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