High Absenteeism: Can We Legally Terminate Employees with Notice? Seeking Legal Insights

Dear Professionals,

I need your expert opinion on the following query: Can we terminate any worker due to high absenteeism by paying them notice as per the appointment letter? Please share High Court/Supreme Court judgments on the same if anyone has them.

Thanks and Regards,
Kaushik Ahir

If an employee is absenting unauthorizedly, please ask him in writing to join the service. If he does not comply, then issue a charge sheet, conduct a domestic enquiry, and award punishment (termination) based on the enquiry report.

There are judgments that state an enquiry is essential even when the employee is charged with habitual absenteeism or absent without permission.

For more information, check my blog at www.labourlawhub.com.

Yes, you can give as per the appointment letter clause. However, before you give them a chance to reduce absenteeism.

Handling Absenteeism in the Workplace

Absenteeism is a straightforward offense to prove and address in social forums everywhere. You need to follow the procedure as per the standing orders applicable to your unit. The procedure entails issuing a chargesheet, conducting a domestic inquiry, issuing a second show cause notice, and then dismissing the employee.

In the case of long absenteeism, you should gather testimonies from the Head of Department (HOD) and any supervisor to demonstrate how the absence has significantly impacted routine jobs, production activities, and the overall functioning of the shop floor. The HR department should provide records of the employee's absenteeism, leaves, and warning letters, which should be introduced as exhibits during the inquiry proceedings.

Drafting the Chargesheet

When drafting the chargesheet, ensure that it includes detailed descriptions of the irregular and habitual nature of the offense, illustrating that the delinquent employee has not improved despite multiple opportunities to do so, and absenteeism remains frequent and high. Avoid taking shortcuts, as they may lead to compromising the situation and incurring costs, which could have been avoided.

Regards,
RDS Yadav
Labour Law Adviser
Director - Future Instt. of Engg. and Management Technology
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Termination for Absenteeism: Legal Insights

You can terminate any worker for absenteeism without paying notice as per the appointment letter. In a recent judgment in Writ (C) 90 of 2016, the Supreme Court upheld the dismissal order of IDPL. IDPL had dismissed me on the grounds of "since you have been absconding from duty for more than 90 days (since 21.06.2014 till now), your services stand automatically terminated w.e.f 21.09.2014."

However, the fact in the Writ was that Praveen Kumar, CMD, IDPL on deputation basis from the Indian Defense Account Service, did not allow me to work. He kept me without work at the Head Office for one month as he wanted to promote his closest female executive, Ms. Kamna Saini, aged about 32 years. He transferred me to the Gurgaon Plant with a mala fide intention and subsequently dismissed me without payment of a single penny.

I dared to raise this issue of arbitrary and discriminatory state action to the PMO and subsequently to the Supreme Court of India in the form of Writ Civil 90 of 2016. The Supreme Court upheld the dismissal order of IDPL and dismissed the petition as the court did not find any grounds under Article 32 of the Constitution of India.

The Writ Civil 90 of 2016 was listed under the main category of "Labour Matters-Dismissal," and the ground of dismissal was cited by IDPL, a government-owned sick industry, as "absconder/absenteeism."

Hope this clarifies your queries!

Regards, Om Prakash Poddar

MSW & Labour Law

Dismissed under Writ (C) 90 of 2016.

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No. You have to treat the absenteeism as misconduct and conduct a domestic enquiry before termination.

No need to give notice, no need to pay wages, no charge sheet, no domestic enquiry required as the Supreme Court upheld in the Writ 90 of 2016. Do not worry. I may request you to kindly read the Question of Laws in this Writ petition as attached above.

Om Prakash Poddar MSW & LABOUR LAW Dismissed under Writ (C) 90 of 2016. 9968337815

Thank you for sharing the Supreme Court judgment. We are under obligation and, as a mandatory rule, maintain discipline across organizations by implementing Service Rules for management staff and Standing Orders, whether model or certified, applicable for workmen. The procedure for disciplinary action is also clearly agreed upon, announced through the same, and further expressed in Standing Orders. If I do not observe a set procedure myself, would this not be a breach of promise? Moreover, how would I dare to enforce the same and other rules and provisions applicable to my employees? Similarly, the court has in many such cases either reinstated delinquent employees or mostly awarded retrenchment compensation. I reserve further arguments until I receive your guidance on this point.

Regards, RDS Yadav
Labour Law Adviser
Director - Future Institute of Management and Technology

Mr. Yadav, first of all, please note that I am not providing you with guidance. I have simply responded to the queries of the post.

We should respect the judgment of the Supreme Court (SC). I have full faith in the Hon'ble SC as it follows the rule of law, not the emotions of the common man. I am confident that I will get justice, although the method of the SC may differ.

Coming to your discussion, you are bound to follow due process of law.

My limited knowledge suggests that the judgment of the SC becomes the law of the land. The enforcement of the law of the land is not carried out through written materials in books but through the judgments of the SC.

There cannot be two sets of laws for the enforcement of the principle of natural justice for the same cause of action—one for the state and another for private stakeholders. Private players learn from the actions of the state. Hence, if the SC has expressed a viewpoint to safeguard the state, then naturally it becomes applicable to all.

It is another matter whether one should follow due process of law or not. Law is a matter of interpretation, which is why judgments are challenged in the court of law every day.

Please find attached my written arguments before the SC, and I request you to kindly read only paragraphs 24 to 27. It will not take much of your time but will answer all your queries from your post.

The choice is yours... Which path will you adopt?

Regards,

Om Prakash Poddar
MSW & LABOUR LAW
NEW DELHI
[Phone Number Removed For Privacy Reasons]