How Should I Handle a Worker Refusing to Acknowledge Misconduct and Show Cause Notice?

One of my workers violated modal standing orders (i.e., escaped from the work spot without proper approval from HOD's). After that, we have guided them personally, but there has been no improvement. As a result, we issued a show cause notice to the worker. However, they rejected to accept the show cause notice and refused to sign, neglecting the same.

Now, I am unsure what kind of action I should take against this worker. None of the other workers are willing to provide information against them due to their union affiliation. Consequently, we lack evidence to take further action.

In this complicated situation, I seek guidance on the appropriate steps to follow.

1) Send the Charge Sheet by Registered Post with Acknowledgement due to the delinquent employee's address.

2) If the REFUSAL TO RECEIVE THE CHARGE SHEET is misconduct in your Standing Order, issue another Charge Sheet to him.

3) If there is no satisfactory reply, conduct a domestic enquiry.

4) Determine the punishment based on the findings of the enquiry.

Situation like this is very sensitive, and therefore, you have to deal with it very diplomatically. If you send the show cause notice to his address by registered post, the same may not be accepted but returned as "addressee not available/traced." If you put it on the notice board of the company, he may react. If he does not turn up, you may proceed to take disciplinary action. Based on prima facie information, you can suspend him pending inquiry. Then you can issue a charge sheet and follow the inquiry.

These are all theoretical in nature. Without the cooperation of the employee, it is very difficult to proceed with it. Therefore, it is always desirable to have a discussion with the Trade Union he is representing and put the matter for conciliation. When the conciliation in the presence of office bearers of the trade union fails, you can take it forward as an industrial dispute. That would be better, I feel.

Regards,
Madhu.T.K

If he refused to accept the show cause/charge sheet, can I send the letter copy to the labor commissioner and mark him absent for that day?

A show-cause notice or a charge sheet is only an internal or domestic document. Therefore, it should not be sent to the Labour Commissioner or any other official. Their intervention will take place only when the domestic enquiry report becomes unacceptable. Therefore, you need not send a copy of the show-cause notice or charge sheet to the Labour Commissioner, but as a last resort, you can publish the notice in the newspaper.

Regards,

Madhu.T.K

Though the delinquent employee willfully refuses to accept the charge sheet sent through Registered Post With Acknowledgement Due and returns with postal endorsement as "address not found," it forms part of the record and establishes the management's efforts to serve the charge sheet on the employee. Thereafter, it can be published in the newspaper.

Prima facie, management is expected to communicate with the employee at the address provided by them. I strongly recommend following the step-by-step procedure for a fair and proper inquiry.

When he rejected to take the show-cause notice, can I impose a 3% fine on gross salary as per the Payment of Wages Act?

You just can't impose a fine just like that. If the delinquent fails to give a convincing reply, then you can. However, this would appear odd. Alternatively, if your company's S.O. says refusal to receive SCN is misconduct, issue him another charge sheet along these lines.

If he refused to accept the show cause/charge sheet, can I mark him absent for that day?

If he is still coming for duty, you cannot mark him absent just because he didn't respond to the show cause notice. However, you can suspend him from service and proceed with the inquiry. In such cases, he will be marked as suspended and will receive subsistence allowance as per the Standing Orders.

Regards,
Madhu.T.K

Dear Venketpelluri,

Now, there are many legal books available on "How to terminate an employee," "How to initiate disciplinary actions," etc. Your case seems to be quite simple.

Once you have sent the show cause notice to the employee through a messenger and it is not accepted and acknowledged by the employee, the messenger has to return the document with his remarks "refused to accept" with the time and date written on the envelope. If possible, he may try to get the signature of a witness too. It is not always possible to get a witness to sign because they are also part of the union.

Refusal to accept any official communication is another misconduct. Towards this, you should initiate another show cause notice. Let both of these be displayed on all the notice boards. Since the employee is present during these days, it is enough to have these on the notice boards. On these memos, you must write cc: Notice board. The employee may now realize that the employer is serious and try to act accordingly.

Upon expiry of the time limit specified, frame the charge sheet and send it again to him, and of course, with a copy to all notice boards. Within the time limit for his reply against the charge sheet, if there is no response, arrange to conduct an enquiry. Give him a chance to appear for the enquiry along with a co-worker if he so desires. In case he does not care to attend the enquiry, proceed and conclude ex-parte. The enquiry just has to show whether the employee is guilty or not. Then, the punishment can be decided by you as per the rules.

During this period, if the employee is present, you can never mark him absent. Marking him absent while he is present is a punishment, and punishment without going through the proper procedure will go against the employer.

There is no rule stating that the employee has to accept and acknowledge official memos.

The attempt to communicate in all possible means is the only approach. Putting up notices on the notice board is proof enough of that.

In case the employee is absent, then only you have to send it by registered post. In this case, repeat it twice and prove that the employee is not available at the last known address. You may be lucky if the postmark "refused to accept" appears on the returned envelope.

Regards,

Kesava Pillai