Is Absence Without Leave for Over 10 Days Considered Voluntary Resignation? Seeking Legal Insights

Dear Senior,

Greetings of the day!

I am an HR Executive in a company. I would like to inquire if there is any law stating that when an employee is absent without approved leave for more than 10 days, it can be treated as their voluntary resignation. If so, could you please provide the relevant section of the labor act that pertains to this matter?

There is no such law prevailing to my knowledge. We do not know where you got the information. There is no term as voluntary resignation. Where did you hear that from?

Dear Friend,

This is not like that. However, it'll be treated as unauthorized absenteeism, and action shall be taken accordingly against the employee. There are necessary compliance procedures as well.

Rgds

If any person has absconded from their duty and no information/leave has been sanctioned, you may issue a show cause notice first. Then, you may put that individual on the substitute list. In the second reminder, you may state that since they have left the job voluntarily, it may be treated as having left the job. However, there must be some guideline in the standing order of your company.

Thanks

Even if you treat it as abandonment of service, yet principles of natural justice have to be followed; otherwise, it will be treated as retrenchment under the ID Act. Kindly see the DK Yadav case decided by the Apex Court in 1993.

Thanks,

Sushil

Dear Sushil ji, Let me first congratulate you on becoming a Senior Member of this ESTEEMED FORUM, and that too, in a very short span of time. You deserve it. Your posts per day at the rate of more than 3 justify your promotion. I am closely reading your posts and am very pleased to find a nice blend of appropriateness with authenticity. Please keep it up. I look forward to learning more from your posts.

Losing Lien on Appointment

In the current topic, it seems to me that the queriest may be referring to losing lien on appointment. The provision under the IE(SO) is as follows: If a workman remains absent beyond the period of leave originally granted or subsequently extended, he shall lose lien on his appointment unless he returns within ten days of the expiry of his leave, and explains to the satisfaction of the manager his inability to return on the expiry of his leave. In case the workman loses his lien on the appointment as aforesaid, he shall be entitled to be kept on the "badly list".

Thank you.

Dear Korgaonkar Ji, Many thanks for the good wishes. I am thankful to this forum for giving me the opportunity to serve people. Having enjoyed top designations, for me these are not material before good deeds. A man is recognized only through his good deeds, and that is eternal. Look at Shaheed Bhagat Singh. My efforts are that anyone seeking help on this forum at least gets to know of their rights. The rest is up to them whether to pursue or not.

The querist wanted to know whether "there is any law stating that in case an employee is absent without an approved leave for more than 10 days, that can be treated as their voluntary resignation."

In respect of a similar clause of standing orders, the Apex Court in D.K. Yadav’s case observed the following observation of the Tribunal:

"The action of the respondent is in accordance with the standing orders and it is not a termination nor retrenchment under the Industrial Disputes Act, 1947."

The Apex Court pointed out that the principles of natural justice must be read into the standing order No. 13 (2) (iv). Otherwise, it would become arbitrary, unjust, and unfair, violating Article 14. When so read, the impugned action is violative of the principles of natural justice.

The relevant passages are extracted below:

Supreme Court of India

D.K. Yadav vs J.M.A. Industries Ltd on 7 May, 1993

The Tribunal found that the appellant had failed to prove his case. The action of the respondent is in accordance with the standing orders and it is not a termination nor retrenchment under the Industrial Disputes Act, 1947, for short 'the Act'. The appellant, in terms of standing orders, lost his lien on his appointment and so is not entitled to reinstatement.

Clause 13 (2) (iv) standing order reads thus:

"If a workman remains absent without sanctioned leave or beyond the period of leave originally granted or subsequently extended, he shall lose his lien on his appointment unless:

(a) he returns within 3 calendar days of the commencement of the absence or the expiry of leave originally granted or subsequently extended as the case may be; and

(b) explains to the satisfaction of the manager/management the reason for his absence or his inability to return on the expiry of the leave, as the case may be. The workman not reporting for duty within 8 calendar days as mentioned above, shall be deemed to have automatically abandoned the services and lost his lien on his appointment. His name shall be struck off from the Muster Rolls in such an eventuality."

A reading thereof does indicate that if a workman remains absent without sanction of leave or beyond the period of the leave originally granted or subsequently extended, the employee loses his lien on employment unless he returns to duty within eight calendar days of the commencement of the absence or the expiry of leave either originally granted or subsequently extended. He has to give a satisfactory explanation to the Manager/Management of his reasons for absence or inability to return to duty on the expiry of the leave. On completion of eight calendar days' absence from duty, he shall be deemed to have abandoned the services and lost his lien on his appointment. Thereafter, the management has been empowered to strike off the name from the Muster Rolls.

In this case, admittedly, no opportunity was given to the appellant and no enquiry was held. The appellant's plea put forth at the earliest was that despite his reporting to duty on December 3, 1980, and on all subsequent days and readiness to join duty, he was prevented from reporting to duty, nor was he permitted to sign the attendance register. The Tribunal did not record any conclusive finding in this behalf. It concluded that the management had power under Cl. 13 of the certified Standing Orders to terminate the service of the appellant. Therefore, we hold that the principles of natural justice must be read into the standing order No. 13 (2) (iv). Otherwise, it would become arbitrary, unjust, and unfair, violating Article 14. When so read, the impugned action is violative of the principles of natural justice.

Therefore, the query whether the employee in the said circumstances can be treated as their voluntary resignation is in the negative, and on the contrary, it will be treated as retrenchment.

Thanks

Sushil

Leave Without Intimation and Voluntary Resignation

Leave without intimation does not amount to voluntary resignation. There should be an intention and supporting factors by the employee to accept such absence as a voluntary resignation. In all circumstances, every action taken by an employer should be in line with natural justice, and any action short of this theme would not be advantageous!

There are many reported cases in Sri Lanka where, due to unavoidable circumstances, the employee is not able to intimate their absence. For instance, in a case where the employee has met with an accident and is admitted to the ICU, or has been in prison and has no way to communicate with the employer, can the absence be treated as voluntary resignation?

In a deep sense, it can be treated as a disciplinary matter, and the employer has the option to terminate the employee's services, provided the employer has records of previous absences of this nature and other records of poor attendance, etc., reported and action taken.

On the other hand, if the employer has sufficient information to prove that the employee has taken up another employment or occupation and, as a result, has kept away from reporting for work, it would be an ideal situation to assume voluntary resignation. The employer, in the first instance, must show cause to the employee and suggest why this act should not be treated as a voluntary resignation.

Dear Team,

We can issue an Absconding letter to the employee and should send it to his address by registered A.D. within three days. If he still does not resume his duties, then we can send the termination letter.

Talk to your HR and tell them about the problem. If you have not had conflicts with your boss or HR and are leaving on a positive note, in most cases, HR will waive off the notice period unless they have a valid reason not to. Many issues can be resolved through a cordial face-to-face discussion across the table.