Kamaldeep Poriya said: If any employee takes PL for 7 days but after 7 days, he does not join duty until the next 10 days and sends an email to his department manager and HR manager stating that he has some problem at home and will not be able to join duty for the next 10 days. After 10 days, he writes the same email again. As an HR manager, what action should we take against him?
Please reply.
From India, Mumbai
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From India, Mumbai
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Hi Kamaldeep Poriya,
As per my understanding to your situation, one of your employee availed 7 days of PL and extended the same to another 10 days. Now the same is repeating again and for this reason, you want to take an action against him?
Correct me if I am wrong...
According to the above scenario, yes, you can go ahead and terminate his employment. However, ensure you have all the necessary evidences in place.
As per the recent judgement of Delhi High Court (as per Mr. Keshav's post regarding the same https://www.citehr.com/450449-judgme...ry-2013-a.html) “Unauthorized overstay for a long period would justify dismissal”.
You can refer to the above link for further information on labor judgments.
From India, Hyderabad
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As per my understanding to your situation, one of your employee availed 7 days of PL and extended the same to another 10 days. Now the same is repeating again and for this reason, you want to take an action against him?
Correct me if I am wrong...
According to the above scenario, yes, you can go ahead and terminate his employment. However, ensure you have all the necessary evidences in place.
As per the recent judgement of Delhi High Court (as per Mr. Keshav's post regarding the same https://www.citehr.com/450449-judgme...ry-2013-a.html) “Unauthorized overstay for a long period would justify dismissal”.
You can refer to the above link for further information on labor judgments.
From India, Hyderabad
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As far as possible, send a letter to his residential address intimating that his request for an extension of leave cannot be granted due to business exigencies and asking him to report to the office within 3 to 7 days of the communication. If he does not come, send another letter asking him to show cause why action, including termination of employment, should not be taken against him. Here, also give him a reasonable time to resume work. If he does not return or respond to the letter, then only terminate him and send the communication of his termination. Courts have said that termination on the grounds of absconding or absenting without intimation without following the above procedure, i.e., granting reasonable time to join and granting him reasonable opportunities to show cause, are illegal.
The case quoted by Dikshit seems to be the one by Delhi High Court in Amarjeet Singh Vs. Management of National Thermal Power Corp. Ltd (2013 LLR 121). In this case, the Thermal Power Corp. had undergone the above procedure before awarding termination to the employee, Amarjeet Singh, who had absented himself for 219 days out of 365 days and had not disputed his absence whenever the company called him to show cause for his absence. Moreover, he had been a habitual absentee, and a series of notices were issued to him. From 1992 to 1999, he had taken 1555 days of leaves without approval!
Regards,
Madhu.T.K
From India, Kannur
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The case quoted by Dikshit seems to be the one by Delhi High Court in Amarjeet Singh Vs. Management of National Thermal Power Corp. Ltd (2013 LLR 121). In this case, the Thermal Power Corp. had undergone the above procedure before awarding termination to the employee, Amarjeet Singh, who had absented himself for 219 days out of 365 days and had not disputed his absence whenever the company called him to show cause for his absence. Moreover, he had been a habitual absentee, and a series of notices were issued to him. From 1992 to 1999, he had taken 1555 days of leaves without approval!
Regards,
Madhu.T.K
From India, Kannur
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In your case, the employee is not absconding. He is communicating with you. So, go step by step like sending notices asking him to be present within 48 hours, etc. Go step by step, then take action.
Arun J.
From India, Hyderabad
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Arun J.
From India, Hyderabad
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Make it clear in the first instance: is it worker or officer? Whether yours is a factory or office, do you have any standing orders, leave policy, or terms and conditions of leave mentioned in your appointment letter. These details will provide guidelines for proposed actions. Follow those guidelines, and in the absence of the same, you may issue a letter rejecting the extension of leave and request to report for duty immediately. You may initiate action based on the response.
From India, Hyderabad
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From India, Hyderabad
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Dear Friend,
I do agree with Mr. Madhu. Straight away, you cannot terminate any employee for extending the leave.
Send call letters to him asking him to report for duty immediately on receipt of your letter. Refer to the terms of the appointment letter. Follow the legal procedure. In our case, we went up to the Apex Court to defend our action.
The concerned workmen remained absent for more than 6 months (extending leave on a few occasions though we refused the leave). After publication in the newspaper about the disciplinary procedures, domestic enquiry (ex-parte), 2nd show cause notice informing about the proposed punishment, termination order, etc., he raised the dispute before the labor court. The labor court modified the order U/s. 11-A. The High Court of Karnataka also chose not to intervene in the orders of the labor court. We approached the Apex court, presented all the records, and convinced the Honorable court, and the court converted it into a termination simplicitor.
Your action should be in line with the Quantum of Punishment should be proportionate to the Quantum of misconduct.
Please follow all the procedures, giving him the opportunity to defend his case, and then take necessary action.
Mr. Madhu has vividly and lucidly explained all the facts of the case. I need not repeat them.
G.K. Manjunath
Sr. Manager-HR
From India, Bangalore
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I do agree with Mr. Madhu. Straight away, you cannot terminate any employee for extending the leave.
Send call letters to him asking him to report for duty immediately on receipt of your letter. Refer to the terms of the appointment letter. Follow the legal procedure. In our case, we went up to the Apex Court to defend our action.
The concerned workmen remained absent for more than 6 months (extending leave on a few occasions though we refused the leave). After publication in the newspaper about the disciplinary procedures, domestic enquiry (ex-parte), 2nd show cause notice informing about the proposed punishment, termination order, etc., he raised the dispute before the labor court. The labor court modified the order U/s. 11-A. The High Court of Karnataka also chose not to intervene in the orders of the labor court. We approached the Apex court, presented all the records, and convinced the Honorable court, and the court converted it into a termination simplicitor.
Your action should be in line with the Quantum of Punishment should be proportionate to the Quantum of misconduct.
Please follow all the procedures, giving him the opportunity to defend his case, and then take necessary action.
Mr. Madhu has vividly and lucidly explained all the facts of the case. I need not repeat them.
G.K. Manjunath
Sr. Manager-HR
From India, Bangalore
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Most of such cases will happen when he gets another job in hand and your organization is not strong in implementing laws. There is no option to terminate him. If he can submit proof of a tragedy happening, then some companies will consider it as leave but not all, especially if the employee is in sales/business development.
From India, Bangalore
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From India, Bangalore
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Dear Friend,
I too agree with Madhu's note. We cannot terminate any employee unless an opportunity is given to defend himself/herself. The principles of natural justice, if overlooked, will make the termination void ab initio. To start, give notice to him denying that his request cannot be considered for the extension of leave sought and then proceed accordingly. It is advised to conduct a departmental inquiry (ex parte if the employee does not turn up for the inquiry) and post a copy of the inquiry proceedings and the inquiry report to the concerned employee before initiating the action to terminate.
Best Regards,
Haragopal
GM-HR
Solar Semiconductor Pvt Ltd.
Hyderabad
From India, Hyderabad
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I too agree with Madhu's note. We cannot terminate any employee unless an opportunity is given to defend himself/herself. The principles of natural justice, if overlooked, will make the termination void ab initio. To start, give notice to him denying that his request cannot be considered for the extension of leave sought and then proceed accordingly. It is advised to conduct a departmental inquiry (ex parte if the employee does not turn up for the inquiry) and post a copy of the inquiry proceedings and the inquiry report to the concerned employee before initiating the action to terminate.
Best Regards,
Haragopal
GM-HR
Solar Semiconductor Pvt Ltd.
Hyderabad
From India, Hyderabad
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Hello Kamaldeep Poriya,
I am totally with Madhu & Dikshit on the options open to you as HR. However, BEFORE going ahead with the process of creating the documentation base for Termination, did you INQUIRE--either directly or discretely--regarding the EXACT reason(s) for this employee's absence? I am NOT referring to what he mentioned in his emails... hope you get my point. If, like Doondi Reddy mentioned, this employee joined elsewhere & is only trying to extend his absence through emails, there seems to be something else to the whole situation. Maybe some of his colleagues know the REAL reason(s)? You haven't mentioned IF your company is a Private Company or a PSU--such situations do occur in PSUs [with the employee trying to keep the PSU job 'warm' while he/she explores other opportunities]. Suggest getting the GROUND REALITIES first before going ahead with the Termination Process.
Regards,
TS
From India, Hyderabad
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I am totally with Madhu & Dikshit on the options open to you as HR. However, BEFORE going ahead with the process of creating the documentation base for Termination, did you INQUIRE--either directly or discretely--regarding the EXACT reason(s) for this employee's absence? I am NOT referring to what he mentioned in his emails... hope you get my point. If, like Doondi Reddy mentioned, this employee joined elsewhere & is only trying to extend his absence through emails, there seems to be something else to the whole situation. Maybe some of his colleagues know the REAL reason(s)? You haven't mentioned IF your company is a Private Company or a PSU--such situations do occur in PSUs [with the employee trying to keep the PSU job 'warm' while he/she explores other opportunities]. Suggest getting the GROUND REALITIES first before going ahead with the Termination Process.
Regards,
TS
From India, Hyderabad
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I am in agreement with Mr. Madhu and Mr. Manjunath, but one question comes to my mind. Does the employee have any accumulated leave to his credit? If yes, then, as Mr. Taj Sateesh says, if the reasons he is giving for the extension of leave are genuine and beyond his control (such as severe illness), then will it be justified to terminate him? If he goes to court, will the court accept your action of termination? Think about this before deciding!
S.K. Limaye
MBA (HRM)
From India, New Delhi
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S.K. Limaye
MBA (HRM)
From India, New Delhi
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Hello SK Limaye,
I think you got the basis of my suggestion 'WRONG'.
Please note that IF the employee REALLY had any GENUINE/REASONABLE/JUSTIFIABLE grounds to extend his leave, he would SURELY have mentioned in his emails—ISN'T IT?
So obviously, he is up to something that he DOESN'T want to reveal. WHAT I MEANT WAS to tap/get/source this info—which would make the Termination Process/case stronger with regard to the Company's interest.
Regards,
TS
From India, Hyderabad
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I think you got the basis of my suggestion 'WRONG'.
Please note that IF the employee REALLY had any GENUINE/REASONABLE/JUSTIFIABLE grounds to extend his leave, he would SURELY have mentioned in his emails—ISN'T IT?
So obviously, he is up to something that he DOESN'T want to reveal. WHAT I MEANT WAS to tap/get/source this info—which would make the Termination Process/case stronger with regard to the Company's interest.
Regards,
TS
From India, Hyderabad
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Dear All,
The Delhi High Court case in Amarjeet Singh Vs Management of National Thermal Power Corp. Ltd (2013 LLR 121) is a suitable scenario for the termination of service. There is no doubt. However, the case presented by Shri. Kamaldeep Ji is not appropriate for termination.
I wish to draw your attention to the provisions under S.O. According to it, in the case of overstaying leave originally granted, an employee is liable to lose his lien on his appointment unless he: (a) returns within 8 days of the leave expiry, and (b) explains to the employer's satisfaction his inability to return before the leave ends. He is also entitled to be placed on the waitlist / badli list.
I also want to bring to your attention the Supreme Court Judgment in Uptron India v. Shammi Bhan, where it was established that if a specific S.O. rule states that an employee's services will be considered automatically terminated if they overstay leave, it would violate articles 14, 16, and 21 of the constitution. It was further ruled that taking any action based on such a rule without providing the employee an opportunity for a hearing would be entirely unjust, arbitrary, and unfair.
Thank you.
From India, Mumbai
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The Delhi High Court case in Amarjeet Singh Vs Management of National Thermal Power Corp. Ltd (2013 LLR 121) is a suitable scenario for the termination of service. There is no doubt. However, the case presented by Shri. Kamaldeep Ji is not appropriate for termination.
I wish to draw your attention to the provisions under S.O. According to it, in the case of overstaying leave originally granted, an employee is liable to lose his lien on his appointment unless he: (a) returns within 8 days of the leave expiry, and (b) explains to the employer's satisfaction his inability to return before the leave ends. He is also entitled to be placed on the waitlist / badli list.
I also want to bring to your attention the Supreme Court Judgment in Uptron India v. Shammi Bhan, where it was established that if a specific S.O. rule states that an employee's services will be considered automatically terminated if they overstay leave, it would violate articles 14, 16, and 21 of the constitution. It was further ruled that taking any action based on such a rule without providing the employee an opportunity for a hearing would be entirely unjust, arbitrary, and unfair.
Thank you.
From India, Mumbai
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Hi Mr. Poriya and all dear contributors,
I, along with most of the contributors, agree with the opinion given by Mr. Madhu, Sr. Member-Moderator. However, I would, with due respect to everyone, just add the following:
A letter is to be first sent by Registered AD post or Speed Post to the absenting employee directing him to report for duty immediately within 24 hours of the receipt of the letter. Watch for the acknowledgment of your letter sent by post. In case the letter is received by the employee, then there would be two situations: either the employee will resume duties, or the employee may again send a letter giving reasons for his inability to resume duties. In such a situation, the extension of leave is to be refused, and a show-cause notice for termination of employment should be issued, and further action be taken on the sequence of developments.
There may be another situ
From India, New Delhi
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I, along with most of the contributors, agree with the opinion given by Mr. Madhu, Sr. Member-Moderator. However, I would, with due respect to everyone, just add the following:
A letter is to be first sent by Registered AD post or Speed Post to the absenting employee directing him to report for duty immediately within 24 hours of the receipt of the letter. Watch for the acknowledgment of your letter sent by post. In case the letter is received by the employee, then there would be two situations: either the employee will resume duties, or the employee may again send a letter giving reasons for his inability to resume duties. In such a situation, the extension of leave is to be refused, and a show-cause notice for termination of employment should be issued, and further action be taken on the sequence of developments.
There may be another situ
From India, New Delhi
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In continuation of my above note, which was posted incomplete:
There may be a situation where the letter is returned undelivered with remarks from the postal authorities. Regardless of the remarks, in such a case, a notice may be published in the local newspaper and a national newspaper, detailing the absence and the initiation of a departmental inquiry. The departmental inquiry should proceed according to schedule. If the employee wishes to report for duty after the publication of the inquiry notice, they should not be immediately reinstated but directed to participate in the inquiry proceedings. The final action will be based on the report of the Inquiry Officer, issued by an authority with the power to impose punishment, which could include termination of employment.
Another aspect that may need clarification, not addressed in Mr. Poriya's question, is the status of the post held by the employee, whether they are a temporary or permanent employee. Understanding the terms of appointment and service offered to the employee is crucial. This aspect should also be taken into consideration. Actions should align with the terms and conditions of service and the disciplinary rules of the organization.
With kind regards,
Srivastava C.M. Lal
From India, New Delhi
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There may be a situation where the letter is returned undelivered with remarks from the postal authorities. Regardless of the remarks, in such a case, a notice may be published in the local newspaper and a national newspaper, detailing the absence and the initiation of a departmental inquiry. The departmental inquiry should proceed according to schedule. If the employee wishes to report for duty after the publication of the inquiry notice, they should not be immediately reinstated but directed to participate in the inquiry proceedings. The final action will be based on the report of the Inquiry Officer, issued by an authority with the power to impose punishment, which could include termination of employment.
Another aspect that may need clarification, not addressed in Mr. Poriya's question, is the status of the post held by the employee, whether they are a temporary or permanent employee. Understanding the terms of appointment and service offered to the employee is crucial. This aspect should also be taken into consideration. Actions should align with the terms and conditions of service and the disciplinary rules of the organization.
With kind regards,
Srivastava C.M. Lal
From India, New Delhi
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Hi Kamaldeep Poriya,
It looks like your employee has secured another job to join immediately. To avoid serving the notice period, he must be planning this trick. He also wants to get paid for his 7 days of earned leave, which he will not receive if the notice period is not served. He might be considering resigning by creating an unusual scenario once his salary for the 7 days is credited. In this situation, he will also receive his experience letter and other settlement, etc.
Please do not credit his salary for the 7 days. Depute a person directly to his house to find out the reality. If he is genuinely in trouble, please help him to overcome it. If he is attempting to deceive you, then please follow the suggestions of the seniors.
Regards,
Rathna
From India, Bangalore
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It looks like your employee has secured another job to join immediately. To avoid serving the notice period, he must be planning this trick. He also wants to get paid for his 7 days of earned leave, which he will not receive if the notice period is not served. He might be considering resigning by creating an unusual scenario once his salary for the 7 days is credited. In this situation, he will also receive his experience letter and other settlement, etc.
Please do not credit his salary for the 7 days. Depute a person directly to his house to find out the reality. If he is genuinely in trouble, please help him to overcome it. If he is attempting to deceive you, then please follow the suggestions of the seniors.
Regards,
Rathna
From India, Bangalore
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Dear,
Following things must be ensured:
(1) You have to ensure that the notice must be served to the defaulter.
(2) After receiving acknowledgment of the notice, the individual who has turned out must appoint an enquiry officer with terms of reference. He has to conduct an enquiry and should provide ample opportunity to the defaulter to present his case. According to the outcome of the disciplinary action report, you can make a decision that will be valid in any court of law.
Regards,
MS Lenin
From India, Thiruvananthapuram
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Following things must be ensured:
(1) You have to ensure that the notice must be served to the defaulter.
(2) After receiving acknowledgment of the notice, the individual who has turned out must appoint an enquiry officer with terms of reference. He has to conduct an enquiry and should provide ample opportunity to the defaulter to present his case. According to the outcome of the disciplinary action report, you can make a decision that will be valid in any court of law.
Regards,
MS Lenin
From India, Thiruvananthapuram
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Dear Kamal Deep,
You have a very clear guideline as given by Mr. Dixit, Madhu, TS, Haragopal, and Mr. Manjunath G.K. I have some more input for your information that an employee cannot take leave as a right except for medical leave. Medical leave is a separate matter. Kindly go through all the aspects.
Regards,
Ramesh Kumar Panchal
From India, New+Delhi
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You have a very clear guideline as given by Mr. Dixit, Madhu, TS, Haragopal, and Mr. Manjunath G.K. I have some more input for your information that an employee cannot take leave as a right except for medical leave. Medical leave is a separate matter. Kindly go through all the aspects.
Regards,
Ramesh Kumar Panchal
From India, New+Delhi
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