Termination and Labor Court Referral
Can any termination post-domestic enquiry due to unauthorized absenteeism on account of ill health be referred to the labor court by the employee? Please share a case study and your experience, if any.
From India, Bangalore
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Can any termination post-domestic enquiry due to unauthorized absenteeism on account of ill health be referred to the labor court by the employee? Please share a case study and your experience, if any.
From India, Bangalore
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Hello, Abhisekh Rudra & Avinash Kanoray, why not discuss the case and the suggestions/citations emanating from Avinash Kanoray in this forum? After all, that's what CiteHR is meant for—sharing for everyone's benefit. There's every possibility that there could be other members too who could be facing similar problems/situations.
Regards,
TS
From India, Hyderabad
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1650Regards,
TS
From India, Hyderabad
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it is not comrehendible as to how an employee absenting on grounds of illness can also be considered as committing a misconduct. B.Saikumar HR & labour Law advisor Mumbai
From India, Mumbai
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From India, Mumbai
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Firstly, if the employee is covered under the definition of a workman under the ID Act of 1947, then he has to raise the dispute before the conciliation officer. After the failure of conciliation, the government can refer it to an Industrial Tribunal/Labour court for adjudication. If the government does not refer the case, then the employee can directly raise a dispute before the Industrial Tribunal.
As far as your case is concerned, the answer is yes if the employee is a workman. He may raise the dispute on the following grounds: Domestic Inquiry is vitiated if the inquiry officer is biased or if the charge sheet is not served/the inquiry report is not served, or if you have engaged a legally trained person as the presenting officer, or if the punishment is grossly disproportional, and if the Principles of Natural Justice are not followed.
From United States
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As far as your case is concerned, the answer is yes if the employee is a workman. He may raise the dispute on the following grounds: Domestic Inquiry is vitiated if the inquiry officer is biased or if the charge sheet is not served/the inquiry report is not served, or if you have engaged a legally trained person as the presenting officer, or if the punishment is grossly disproportional, and if the Principles of Natural Justice are not followed.
From United States
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Dear Abhishek, please understand that it is not the employee who can or will refer the dispute to the Labour Court for adjudication. Yes, an employee whose services have been terminated on account of any kind of misconduct, post Domestic Enquiry, can challenge his termination. The first step open for the employee is the Conciliation proceedings. It is the Conciliation Officer who may submit a failure report, upon which the appropriate government may refer the matter to the Labour Court for adjudication. Failing which, the employee has the right to directly approach the Labour Court to challenge his termination.
Best Wishes,
Vasant Nair
From India, Mumbai
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Best Wishes,
Vasant Nair
From India, Mumbai
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There seems to be a technical problem in handling this case. The general clause pertaining to unauthorized absence from duty also stipulates that he will not be deemed to be absenting unauthorizedly if he "proves to the satisfaction of the management the real cause for his absence." For example, if an employee unauthorizedly absents from duty for a period of, say, three weeks and on his return thereafter submits a medical certificate pertaining to his serious sickness and also explains that communications sent by the management did not reach him as his residence was in a remote area where either the proper communication does not reach or takes too much time and that his attendants were not literate enough to have made an application to you for his sickness. Once satisfied, the termination of employment has to be reviewed by the management and in the event of refusal by the management, the employee is well within his right to take up the case for conciliation, etc.
In any case, the service of an employee cannot be terminated for absenting from duty (on medical grounds) considering the above as misconduct unless proved otherwise.
Regards,
S.K. Johri
From India, Delhi
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In any case, the service of an employee cannot be terminated for absenting from duty (on medical grounds) considering the above as misconduct unless proved otherwise.
Regards,
S.K. Johri
From India, Delhi
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Dear Abhishek,
Greetings for the day. Let us understand the meaning and interpretation of the term 'Unauthorized absence'. It refers to days of absence without any intimation, leave application, prior leave sanction, overstaying of sanctioned leave, or habitual absence. In your case, the termination of services occurred after conducting a domestic inquiry, and that too on the grounds of sickness. The case will need to be examined based on merits, documents, and evidence on record. If the worker has consistently provided medical certificates from the ESI Hospital or a private medical practitioner in advance, then this will not be considered unauthorized absence.
Furthermore, termination during medical treatment could be deemed as illegal and an unfair practice on the part of the employer. In such circumstances, the worker can challenge the termination order by raising a dispute before the Assistant Commissioner of Labour for Conciliation. If Conciliation proceedings fail, the Assistant Commissioner of Labour may refer the dispute to the Labour Court. However, the outcome will be contingent on the merit of the case. I hope this clarifies the situation.
Regards,
Avinash Kanoray
From India, Pune
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Greetings for the day. Let us understand the meaning and interpretation of the term 'Unauthorized absence'. It refers to days of absence without any intimation, leave application, prior leave sanction, overstaying of sanctioned leave, or habitual absence. In your case, the termination of services occurred after conducting a domestic inquiry, and that too on the grounds of sickness. The case will need to be examined based on merits, documents, and evidence on record. If the worker has consistently provided medical certificates from the ESI Hospital or a private medical practitioner in advance, then this will not be considered unauthorized absence.
Furthermore, termination during medical treatment could be deemed as illegal and an unfair practice on the part of the employer. In such circumstances, the worker can challenge the termination order by raising a dispute before the Assistant Commissioner of Labour for Conciliation. If Conciliation proceedings fail, the Assistant Commissioner of Labour may refer the dispute to the Labour Court. However, the outcome will be contingent on the merit of the case. I hope this clarifies the situation.
Regards,
Avinash Kanoray
From India, Pune
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