Anonymous
Sir / Madam

An employee is overstaying on leave i.e., remaining absent continuously for more than one month beyond the leave granted date / period. On advise to report for duty over phone, he pleaded for some more days and informed a future date. Faced with dislocation of job due to his absence Management has made alternative arrangement for his roles and responsibilties.

Now Management wants to transfer him to a different location in another State. Can we do so and if done will it be legally valid. Can any learned and experienced person guide me in this scenario.

Thanks

From India, Chennai
If your terms of employment (appointment letter / standing orders) allows transfer of the employee, you can proceed whether he is on duty or not.

If there is no such provision, and you are doing the transfer as a punishment, then you need to conduct a domestic enquiry and give the decision accordingly. The employee may be asked to participate in the enquiry on phone or video conference if he is unable to join physically

From India, Mumbai
Dear member,

An employee of your company has overstayed his leave. He is unable to report to his duties for whatever problem he has. However, have you verified the cause of his absence? Has he provided you with the documentary proof?

Second, overall, what was the level of performance of the employee? What is the feedback from the HoD? Was he dependable?

If the reasons for the employee's absence are genuine, then it would not be fair to increase his hardship by transferring his job. Is it an outstation transfer or in the same city? What is the logic of transferring an employee who is unable to attend even his regular duties? Therefore, if the reasons are not unfeigned, then show him empathy and wait for him to resume the duties. If the reasons are counterfeit, even then there is no logic of transferring him. As suggested by Mr Banerjee, you may order a domestic enquiry to investigate the misconduct and award him a suitable punishment, which could be either in-station or outstation transfer. In such a case, while issuing the transfer order, write clearly that the transfer is a punishment, and the application for the exemption or withholding of the transfer will not be entertained.

Thanks,

Dinesh Divekar

From India, Bangalore
Dear Colleague,

Your case is that one of your employees has overstayed sanctioned leave unauthorisedly for over a month. There is no mention whether any written communication was sent to him to resume duties except once on phone during which he asked for more time to rejoin duties.

In the mean time you have replaced him with another person and now wish to transfer the absenting employee to another location in different state.

His misconduct could be overstaying sanctioned leave without permission or sanction for more than 10 consecutive days as per the Model Standing Orders if the Act is applicable to your establishment.

Although it is implied service condition that services of an employee can be transferred to another location due to business exigencies and the employer has every right to do so except that it should not be by way punishment or with malafide intention. In this case, there is possible linkage of his being absent from duty and the intended transfer if given effect to at this juncture. It is wiser not to mix these two issues - absence and transfer and better to keep it seperate as there is every chance of your action of transfer to be upheld as punitive action if and when it is challenged in the court.

As a first step, you should initeate disciplinary proceedings against the Employee, for the misconduct of overstaying leave without permission and sanction - issue of chargesheet, conducting of domestic enquiry and awarding appropriate punishment if charges are proved in accordance with the MSO. MSO does not provide for transfer as one of the punishments.

Contrary to the well entrenched law regarding the right of an employer to transfer an employee except without by way of punishment, I am taken aback that the learned colleague, has advised to effect the transfer of this absenting employee explicitly by way of punishment after the domestic enquiry held, which is patently illegal.His wisdom does not stop here and he has further advised to state explicitly in the transfer order that the the transfer is by way of punishment and no request for withholding it will be entertained. If such an order is challenged in the court, it is bound to be quashed forthwith. It is hoped that wiser counsel will prevail on the senior colleague to refrain from giving wrong advice tarnishing the image of this forum.

The poster is advised not effect the intended transfer at this stage and wait for an appropriate time later.

Regards,

Vinayak Nagarkar
HR and Employee Relations Consultant

From India, Mumbai
Dear Mr Vinayak Nagarkar,

I refer to your previous post in which you have written "Contrary to the well-entrenched law regarding the right of an employer to transfer an employee except without by way of punishment..."

Would you mind confirming which law prohibits awarding "transfer" as punishment? If not law, then you may quote a case law.

As far as government organisations are concerned, punishment transfers are common. If you have specific information on the difference between government and private organisations, then please bring it out.

Thanks,

Dinesh Divekar

From India, Bangalore
In respect of Government servants, punishment transfer is euphemism; there are no statutory rules which provide transfer as a punishment to be imposed on conclusion of the disciplinary proceedings. In fact, even suspension from duty is not considered as a punishment.
From India, Kochi
Dear Mr P Venu,

You have written, "there are no statutory rules which provide transfer as a punishment to be imposed on conclusion of the disciplinary proceedings."

Please confirm whether there are statutory provisions or rules that prohibit transfer as a punishment. If you know the case law, then please provide the details.

Thanks,

Dinesh Divekar

From India, Bangalore
Dear friends,

Transfer is an incidence of service and as such the employer has the power and prerogative in the interest of administration to decide who is to work where and how long. However, such a power cannot be exercised by the employer arbitrarily without conforming to the service regulations applicable to the employees or as a colorable exercise of power or as a measure of victimization.
Of course, all the learned members participating in this discussion so far have no disagreement on this point.

But disagreement arises only as to whether transfer can be ordered as punishment. It is really a genuine and valid disagreement in the realm of employment which requires a deeper and dispassionate analysis.

The Supreme Court of India has already laid down the cardinal principle that transfer by way of punishment is not permissible in State of Uttar Pradesh v. Jagdeo Singh ( 1984 II LLN 258 ) and many other judgments before and after.

In general, if we analyse the implication of a punishment awarded by the employer as a result of a disciplinary action, it is a negation of the terms and conditions of the contract of employment so far as the employment rights and benefits of the delinquent employee is concerned.

However, in the back drop of the above Judicial Dictum, as transfer either by way of punishment or in lieu of punishment brings the restrictions on the power of the employer into play, transfer cannot be ordered as punishment becomes the conclusion.

Therefore, the misconduct of unauthorized absence cannot be disposed of with a punishment of a punitive transfer.

From India, Salem
Vinayak, are you sure that employer has full rights to transfer any person wherever he wishes?
To the best of my knowledge, it can be done only if there is a provision for it in the appointment letter or standing orders.

In all other cases, this will amount to changing the terms of employment which will result in it becoming an Industrial Dispute. The employer doesn't to have right to unilaterally change the terms of employment.

Further, assuming you referred to my post, I would like to know why you believe it is illegal to hold a departmental enquiry if there is apparently a misconduct (which in this case is that he has taken unauthorised leave)

From India, Mumbai
Mr Dinesh Divekar,

You may Google it or search it on Indian Kanoon for n number of citations of Apex courts and educate yourself on laws affecting transfer of employees in private sector. l am not conversant with government or public sector rules and regulations governing this aspect.

Regards,

Vinayak Nagarkar
HR and Employee Relations Consultant

From India, Mumbai

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