Illegal Strike Dilemma: Can We Terminate Employees for Absenteeism After 90 Days?

If employees are on an illegal strike for more than 90 days, can we terminate them on the basis of absenteeism without prior intimation? If yes, then please share some procedure and format.

Regards,
Vrushy

As Mrugen has rightly said, before coming to any conclusion, call all the employees or their representatives, ask for their demands and the reasons for the illegal strike, and resolve the issue amicably across the table. Please ensure that a management representative/decision-maker accompanies you. Also, check whether they have formed any union.

In the ID Act, there is a provision for penalties under Chapter VI. Section 26 deals with penalties for illegal strikes/lockouts. The ID Act does not specify anything regarding punishment by way of dismissal. However, there are some case laws on this subject.

Case Law: Bata Vs. DM Ganguly 1961 I LLJ 303

In the case of Bata Vs. DM Ganguly 1961 I LLJ 303, it was highlighted that participation in an illegal strike may not necessarily, in every case, be punished with dismissal. If an inquiry has been conducted properly and the employer has imposed the punishment of dismissal, interference should not occur unless unfair labor practices or victimization against the employee are found.

Experts are requested to provide comments.

Yes, you can terminate the employee, but you have to follow the principles of natural justice by conducting a domestic inquiry. Please check whether the employee is a protected workman or not.

From your question, one thing is not clear, i.e., how can a single person be called to be on an illegal strike continuously for 90 days without giving any notice or application stating his grievances which he 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 a case, you have to give him at least two chances to explain the reasons for his such prolonged absence. Both letters are to be sent under Registered or Speed Post, giving a reasonable gap between the two, to his home address available with the company. If no reply is received within the given period limit (say 15 days of receipt of the 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 to do so will result in the inquiry proceedings being decided ex-parte, without any further reference.

After observing these formalities of "Natural Justice," the Disciplinary Authority may ask the Inquiry Officer to conclude the inquiry proceedings ex-parte, giving his findings/conclusion. Then the Disciplinary Authority may order for termination, and the order may be issued under his signature accordingly.

Best wishes.

Regards,
AK Jain
HR Personnel, NCL, CIL

If only one employee is not coming to work, i.e., absence without prior approval, please check the terms and conditions of the appointment letter. I am sure it would have been mentioned in the letter. If not, please follow the process mentioned by Mr. AK Jain, sending communication to the individual through registered post. Send two communications giving sufficient 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 responding, his employment with the organization will stand cancelled/terminated. Then send a third communication with a termination letter.

Considerations for Different Organizations

As you have not clearly mentioned your organization, the above process may be implemented in case your organization is registered under the S&E Act. If you are working for an industry, the process mentioned by Mr. AK Jain would be applicable as per the Industrial Disputes Act.

Thanks,

Srinu Kumar

Order from the Industrial Court

Please let us know whether you received the order from the Industrial Court declaring the strike as illegal. If yes, was the strike withdrawn immediately within 24 hours? If so, then it will not be considered an illegal strike.

Consequences of Participating in an Illegal Strike

Participating in an illegal strike will not amount to dismissal, which would be a harsh punishment. All the charges such as indiscipline, disobeying legal orders of superiors, threatening co-employees, destroying/sabotaging the company's property, etc., need to be consolidated.

Procedure for Handling Illegal Strike Participants

You should issue the chargesheet, conduct a domestic inquiry, and observe the principles of natural justice. Provide the concerned employees a chance to defend themselves, issue the inquiry report to them, and then a second show cause notice.

Following the direction of the management, you can then issue a dismissal order for the concerned employees.

Regards,
Avinash K.

Action Against Striking Employees: Legal Considerations

A case for action against striking employees will survive only when the strike is illegal. You cannot take action for participating in a legal strike. Who declared the strike illegal? If the strike is declared illegal, even then you cannot directly terminate the services of workmen. You need to serve charge sheets on the employees concerned and conduct a departmental inquiry, as some learned members above suggested, to prove their guilt. Even then, the penalty of dismissal for mere participation in a 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 continuing the strike despite your request to resume duties.

Handling Strikes: A Cautious Approach

A 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. You need to assess the feasibility of conducting domestic inquiries en masse and the consequences of initiating disciplinary action against so many employees at a time on production, probable security issues, and future litigation, etc. Please do your groundwork well since any extreme action in such cases may lead to litigation.

Regards,
B. Saikumar
Navi Mumbai

Legal and Illegal Strikes: Management Actions

For a legal strike, you have to wait until a court decision is reached. Management cannot take any action while the matter is in court. Regarding an illegal strike, management can take action on the grounds of absenteeism.

As experts state, following the principles of natural justice is true and mandatory because ample opportunity must be given to the employee. In terms of termination, a domestic inquiry is a must. Based on the findings provided by the inquiry officer, management can decide on dismissal.

Thank you.

Regards,
Deepak M.

Actions to Take in Case of an Illegal Strike

Following actions are to be taken in the event it is established that the 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.

Dear Vrushy,

No doubt all industrial establishments in India come under the purview of the Industrial Disputes Act, 1947. 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 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 illegal.
4. Whether the employees are working on a contract or permanent basis.
5. Whether your industry has separate service/disciplinary rules.

If you and your management are keen on termination by declaring the strike illegal, nothing forbids the management to do so and terminate the employees as per the law. But as an HR manager, the onus lies on you to bear the aftereffects of a prolonged legal battle, settlements through Labour courts, and also Civil courts. This will be a long-drawn process.

Secondly, as an HR manager, you should consider social responsibility as well. By terminating the striking employees, you will be robbing them of their livelihood. Will it be the right step to punish them? What will happen to their future life? Termination means it is a punishment for indiscipline; therefore, terminated employees may not be eligible for any gratuity. They will only get PF savings.

If the management is not interested in keeping the litigants and is interested in replacing the veteran litigants, this can be done by inviting them to reconciliation and giving them a warm handshake. This may lead to paying some compensation for the loss of the job and also saving the man-hour loss. By doing so, the management can save face, stabilize its production, rework its production strategy, employ fresh young labor, or get its work done through private players.

The third option is to examine the issue in a 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 penny because of the workers. Therefore, their contribution cannot be ignored. Even though they are rough and litigants, as owners, we have to pardon them and take them back to work.

I hope you may agree with my suggestions.

Regards,
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 account of an illegal strike. Only the period of the 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.

Regards,
AK Jain
HR Personnel
NCL, CIL.

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 an IR angle, and solutions should 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. Further, the management 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.

Regards,
B. Saikumar

Rightly said, you should follow the procedure of a domestic inquiry before terminating an employee.

Termination and Legal Provisions

Sai Kumar has stated the provisions of law/procedure following principles of natural justice before termination. Before dismissing, the provisions of Section 33 of the Industrial Disputes Act 1947 need to be referred to as the case may attract approval/permission. If any provisions attract Section 33 and dismissal is not followed by the required provisions, the termination will be illegal.

Regards,
M.N. Sahu
GM (HR)

Handling Illegal Strikes in Karnataka Factories

90% of the workmen, around 50, in a factory in Karnataka are on an illegal strike and have been sitting inside the factory for the last 8 days without doing any work. Thirteen of them have been dismissed, yet the illegal strike continues. The management is functioning with an injunction order from the Civil Court, with only 10% of the workmen and a few contract workers currently working.

How do we legally evict these workmen? The factory operates under Model Standing Orders. Excluding the principle of "No work, no pay" and disciplinary action, how can we legally remove them if they refuse to leave? The management is not willing to recognize the union or discuss with them, and things should move forward without the union.

Please share your expertise. If any of you wish to discuss this privately, you may call me at [Phone Number Removed For Privacy Reasons] (Bangalore) or email me at [Email Removed For Privacy Reasons].

Regards,
Vivian