A worker, mr.jahir of an industry establishment went on leave but remained absent from duties without permission for a period exceeding 10 days where upon the employer by notice terminated his service by issuing a notice as “we find that you are granted casual leave for two days ;with effect from 14-02-18 to 15-2-18 subsequently you pray for a month leave with effect from 16-02-18 to 15-03-18 on ground of your illness and you did not join work place after the end of the leave. More ever since you had failed to return within 10 days from the date of expiry of leave you had been terminated. You may collect your dues from our accounts department on any day during office hours.” Mr. jahir challenged the action before labour court
N:B : The company is situated at Odisha.
(Please solve it as per the labour law and mention the labour act and sections )
25th September 2018 From India
Dear Jobfryou,
This is not legally sustainable way of terminating the services of a workman particularly for unauthorized absence by overstayal of leave. Termination against unauthorized absence beyond certain no. of days though mentioned as such in the standing orders or service regulations can not be resorted to by such a mere notice as mentioned in your post for it would be a gross violation of the Principles of Natural Justice.. You have to initiate formal disciplinary proceedings by issuing a charge-memo, conducting a domestic enquiry if no reply is received or charges are denied, obtain enquiry findings, deciding the punishment to be imposed and where it is dismissal, issuing a second show-cause notice mentioning the proposed dismissal and finally passing the dismissal orders.
25th September 2018 From India, Salem
Such Arbitrary Acts on the part of the Employer/Punishing Authority as stated in the Case Particulars, is more Due to Ignorance rather than Arrogance.
Anyone Can Make a Mistake as one under reference and then learn therefrom after undergoing few torments. The Lesson we Management Practioners epecially in HR or ER or IR Functions need to Learn is to Learn to Take Right Right First Time Every Time and unquestionable One Simple Acton-Plan is to Learn from Those Who have Learnt and are Learning, not the "Learned" kind.
Let all of us Get Together to ensure that None of Us Ever Cause Such Embarrsment and Anxieties to Workers Cadre, Supervisory Cadre and the Employer, fisrt and foremost.
Sharan, Kritarth Team
25 Sept 2018
25th September 2018 From India, Delhi
Illegal termination.Will be set aside, with compensation by court.
Better revoke it.
There is procedure to followed to award major penalty like termination which needs to be followed.
Absence of this kind will not fall in the reasons to terminate services.
Col.Suresh Rathi
25th September 2018 From India, Delhi
Dear Colleague,
This action of termination is patently illegal and is bound to boomrang as principles of natural justice are thrown to wind by immature and irresponsible action bereft of legal knowledge.
You immediately revoke the action of termination and follow the steps suggested by Shri Umakanthan Sir.
Regards,
Vinayak Nagarkar
HR- Consultant
25th September 2018 From India, Mumbai
From the brief description you have given, it does not appear that you have any rule providing for drawing the presumption of automatic termination of lien. Even in such cases, there has to be a minimum semblance of observance of Principles of Natural Justice. Be it as it may be, if you are not in a position to heed the considered opinion expressed above to revoke the action, and you have to defend the matter in the court, then plead the fact of unauthorised absence and specifically submit to the court to be given an opportunity for proving the misconduct on merit. The absence could be proved by producing records along with the relevant witness. If you are able to establish the above facts try to justify the punishment.
26th September 2018 From India, Mumbai
Hi,
What the company has done is known as "Discharge Simpliciter".
When a workman is absent for more than 10 days, and does not show any inclination to join duty,
the company need not wait endlessly for him to return to work and therefore can invoke "Discharge Simpliciter".
If challenged in court it may be set aside, unless the learned counsel of the Company can prove that the workman was holding the Company to ransom to get compensation for his termination.
Thank you,
Regards,
R H Kavarana
HR Manager
Mumbai
26th September 2018 From India, Mumbai
Dear Mr.Kavarana,
I am not sure how come you hold this orders of termination by the employer is " discharge simpliciter"?
So far as I understand that if and only if the employer discharges the employee from service by giving notice or paying wages in lieu thereof as required under the terms of the contract of employment, such termination of employment would be discharge simpliciter.
The wording of the termination orders itself reveals the failure of complying with the contract of employment on the part of the employee by being unauthorisedly absent beyond the sanctioned leave. In other words this is a simple and straight orders of termination of employment signifying the imputation of the misconduct of unauthorized absence on the part of the delinquent. Thus, there is a stigma attached to the employee's exit by this orders. Therefore, no plausible argument of the employer before any Judicial Forum can prove this termination as a mere discharge simpliciter without any malafides.
26th September 2018 From India, Salem
Dear Jobfryou,
I am of the opinion that the termination order sent to the employee was a mistake. the action was unnecessary and impatient. there should have been some steps before you terminate an employee simply stating Unauthorised absence as the Reason.
There should have been notices sent to the said employee, a notice informing him about the enquiry that you are conducting to fathom his absence, the findings should have been communicated to him and his lack of response should have been recorded to categorize him as someone who is not interested in continuing with the job so the company has no option but to take some action that may include Termination.
This process should have given him a chance to explain himself and his situation. There are circumstances when doing other things is more important than informing the company about absence and we as HRs should understand that.
I think you should recall his termination.
Kaushiki
27th September 2018 From India, New Delhi
I think, if there is a clause mentioned in the certified standing orders of the company, if he remains absent more than 8 days or absent continuously more than 8 days after authorised leave, he will lose lien on his employment and his services may be summarily terminated as per the clause. However, this type of situation is being handled by Management and Union bilaterally and solve amicably.
27th September 2018 From India, Hyderabad
No standing order can have clause like that.Standing orders have legal validity only if they have been approved by the lab dept and lab dept will not allow this illegal clause.
Col.Suresh Rathi
27th September 2018 From India, Delhi
Correct. Any clause put into the Company Standing orders will not be validated by the Labour Court. It is meant for the Employees and the Management to discuss and settle all matters internally. This matter is already in labour court so now you have to look at the problem from the perspective of court and general laws
27th September 2018 From India, New Delhi
A clause providing for loss of lein in cases of unauthorised absence exceeding the specific number of days is there in Model Standing Order as well in many certified Standing Orders.
As per SCHEDULE I of the Indl. Employment Standing Orders Act providing for MODEL STANDING ORDERS IN RESPECT OF INDUSTRIAL ESTABLISHMENTS NOT BEING
INDUSTRIAL ESTABLISHMENTS IN COAL MINES Clause 9. Leave. Sub-clause (3) states as follows:
(3) If the workman remains absent beyond the period of leave originally granted or subsequently extended, he shall lose his lien on his appointment unless he (a) returns within 8 days of the expiry of the leave and (b) explains to the satisfaction of the [employer or the officer specified in this behalf by the employer], his inability to return before the expiry of his leave. In case the workman loses his lien on his appointment, he shall be entitled to be kept on the badli list.
The law in this regard is fairly settled that an employer cannot automatically terminate the services of a workman merely for his absence using this clause, but has to observe the principles of natural justice by issuing him notice etc.
In this case, the employer has the right to prove the misconduct of unauthorised absence on merits before the Labour Court and also justify the punishment.
27th September 2018 From India, Mumbai
Dear Mr. Umakanthan,
Thank you for your opinion on"Discharge Simpliciter" since the termination order has asked the employee "You may collect your dues from our accounts department on any day during office hours.” I presumed that they would pay him " notice or paying wages in lieu thereof as required under the terms of the contract of employment, ".
I am in total agreement with your analysis of the case.
Thank you for enlightening me.
With warm regards,
Yours in humility,
R. H. Kavarana
HR Manager
Mumbai
27th September 2018 From India, Mumbai
Thank you, Mr.Kavarana, for your further response. Here, I would like to refer to the ratio decidendi of the Supreme Court in Delhi Cloth and General Mills Ltd v. Shambunath Mukharjee and Others [1978(1)LLJ ] that striking off the name of the workman from the rolls by the management is termination of his service which is retrenchment within the meaning of sec.2(oo) of the ID Act,1947. Certainly I would be with you if the phrase relating to collection of dues actually means notice pay and retrenchment compensation for the service rendered so far. Unfortunately, there is no mention both in the post and orders of termination about the existence of such a provision in the contract of employment or the service regulations of the company.
27th September 2018 From India, Salem
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