Is a Domestic Enquiry Needed Before Terminating an Employee for Unapproved Absence?

Dear All,

Please suggest: after sending the show-cause notices by Registered AD to the confirmed employee who is absenting himself without any permission or information, is a domestic enquiry necessary to hold to terminate the employee?

Thanks & Regards

Hi,

A similar case happened in my previous company. An employee went on leave for a few days and didn't turn up for 15 days. When contacted, he explained that due to some personal problem, he would join after some more days. However, he actually joined another company. After a few months, he contacted us to return for full and final settlement. Therefore, if your employee is absent, reach out to him, understand the reasons for his absence, and conduct a thorough inquiry. It's possible that some unusual circumstances may arise during this inquiry. If you terminate him without conducting this process, he may later cause issues, especially with political entities searching for such opportunities. In essence, in my opinion, a domestic inquiry is necessary, and it represents best HR practice.

Regards,
Mukesh TANK

Case Study: CPSU Self-Fertilization Clause and Transfer Issues

The following case study involves a CPSU applying a self-fertilization clause without a domestic inquiry, with the case being dismissed in the Karnataka High Court on 10-11-2014. Judgment links are provided below:

http://judgmenthck.kar.nic.in/judgme...3456789/904828

http://judgmenthck.kar.nic.in/judgme...3456789/931584

I am the AGM of Engineering and Project ID No. 1476 since 2007 at Karnataka Antibiotic and Pharmaceuticals Ltd, a PSU in Bangalore. During a project assignment in 2008, I was transferred to the Engineering Stores in January 2013 without a salary reduction. Later, I was transferred to the Marketing Department as AGM Marketing Medicine Sales in October 2013. This transfer may not have adhered to the PSU transfer policy, as it occurred within 10 months without validating the purpose of the appointment and posting at Guwahati.

CDA rules and the transfer policy are not accessible. The transfer might have been a retaliation by a senior officer for refusing to amend a vendor purchase order when I was the project in charge. This amendment, approved by a consultant, was against tender terms and would have increased project costs. The transfer letter dated October 2013, signed by the GM HRD, was not from the appointing authority or a level above, as per my appointment letter. It lacked details about the Guwahati company's present or establishment address, as per PSU guidelines, and did not clarify the benefits of the transfer. I was supposed to report to the GM Marketing at the Bangalore head office. A representation for reconsideration of the transfer was rejected, prompting me to seek legal advice. Even the HC court order for reconsideration of the transfer, stating that an engineer may not be suitable to sell medicines, was rejected by HRD.

I reported for duty at the Bangalore Marketing Department at the head office and took long medical leaves for over 60 days. HRD could have invoked the self-termination clause due to unauthorized absence, but the leaves were sanctioned by the GM HRD, not GM Marketing. The reporting officer forced me to accept a demoted position as Manager without a domestic inquiry or chargesheet. The letter lacked the company's establishment address details, and the reporting officer was based in the Bangalore office. In January 2014, I reached Guwahati and started working from a hotel, communicating via personal email as the company did not provide an official email ID. Daily report emails were treated as work attendance, with the hope that the company would eventually provide office infrastructure and staff at the AGM grade, but this was refused in writing. This appears to be a malicious transfer and misuse of public power. I was later forced to work at a lower position as a medical representative. After nearly two years of physical and mental harassment, salary reduction, unexplained salary deductions, and non-payment of March 2014 salary (though income tax was deducted), I vacated Guwahati.

In January 2016, the company settled my dues on account of self-termination or self-abandonment of service due to unauthorized absence, without conducting a domestic inquiry or obtaining my resignation. I hope for protection under CDA rules approved by CVC and Articles 14, 16, and 21 for PSU employees.

Kindly refer to the links below for more information:

http://alrafeeq.blogspot.in/2008/02/...75639277268737

https://indiankanoon.org/doc/389826/

http://www.lawyersclubindia.com/judi...p#.VwP9t1O3Qb3

http://www.hrinfo.in/2015/12/case-laws-2014.html?m=1

Case No: P&H HC 31

Questions for Consideration

- Can a poor employee receive gratuity without resignation, termination, VRS, or service certificates?
- Has the employee and his family been ruined?
- Did the CPSU act legally?

P.S. Kindly copy and paste the links.

Regards,
[Username]

You have to issue a charge sheet and conduct a domestic inquiry against the absent workman before taking any action. You must ensure that the communication of the charge sheet and notice of the inquiry reaches him at his address; if not, then a public notice has to be issued. If he attends the inquiry, a full opportunity for defense is to be given. After the misconduct of absenteeism is proved, the findings of the inquiry officer have to be examined, and then the past record needs to be scrutinized. Further action will depend on all these issues.

Regards

Conducting a domestic enquiry on the charges leveled is an important stage in every disciplinary proceeding and not a mere formality. Particularly, when the outcome is the termination of the services of the delinquent employee, it assumes greater importance due to its severity, as it is an economic death sentence, and due to judicial scrutiny, as the adjudicating tribunal has the power to set aside the orders of dismissal. However, there are certain exceptions, such as the impossibility of conducting an enquiry due to prevailing commotional circumstances like a mass strike or violence at the time, or the unequivocal admission or confession of the charges by the delinquent. Even in the former case, the employer has to provide evidence later to the satisfaction of the tribunal if the orders are contested. But in the latter, a confession of the charges of misconduct cannot be a valid reason to dispense with the process of enquiry if the service rules mandate it otherwise. Since the employee is continuously absent unauthorizedly and remains incommunicado, it is a clear case of abandonment of service in which the conduct of a domestic enquiry is a must before the orders of termination.

Regards,
[Username]

Termination Process Guidelines

For any termination, it is advisable to follow the process outlined below.

1. Send a letter to the address provided by the employee (both permanent and temporary).
2. Send a second letter after a week, and repeat the process once again after 15 days.
3. Sending three letters confirms that the employee has received the letter, provided the given address is correct.
4. In each letter, you should mention the deadline to report to work. Non-reporting would be considered as voluntary abandonment of services. The deadline should be 31 days from receiving the first letter.
5. Along with postal letters, you need to simultaneously send emails to the employee's personal ID.
6. After sending three letters, you can send a termination notice asking the employee to facilitate knowledge transfer.
7. If the employee continues to be absent, you can send them a legal notice from a lawyer's desk stating reasons for retaining company information.