There is an employee who has been absent from duty on medical grounds since December 2014. We sent a show cause letter to his home within 7-10 days of his absence. Upon receiving the company's letter, he responded stating that he is suffering from a "Migraine" problem and that the doctor has advised him to take one month of bed rest. To support his claim, he attached a medical certificate from a government hospital.
We have been corresponding with the employee via postal service and continuously calling him to produce his medical documents or test reports. However, after completing his initial bed rest period, he keeps submitting extension letters from the government hospital for another month of bed rest repeatedly. It appears that he is intentionally avoiding returning to work.
Request for Expert Advice
I would like expert advice on the following points:
1. Can an employee be granted such a long leave for a Migraine problem?
2. Could you provide us with any court judgments related to similar cases?
3. How can our company strengthen its position in this matter?
Thank you.
From India, Ghaziabad
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We have been corresponding with the employee via postal service and continuously calling him to produce his medical documents or test reports. However, after completing his initial bed rest period, he keeps submitting extension letters from the government hospital for another month of bed rest repeatedly. It appears that he is intentionally avoiding returning to work.
Request for Expert Advice
I would like expert advice on the following points:
1. Can an employee be granted such a long leave for a Migraine problem?
2. Could you provide us with any court judgments related to similar cases?
3. How can our company strengthen its position in this matter?
Thank you.
From India, Ghaziabad
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You could probably approach the Government hospital to check with the doctor who is issuing this certificate. Approach the CMO of the hospital with the certificates and seek medical opinion on the matter. It appears that the employee is taking advantage of the medical certificate.
Delhi Medical Council Guidelines on Medical Certificates
The Delhi Medical Council has issued guidelines on medical certificates: the date on which the patient was examined, nature of incapacity, degree of incapacity of the patient. The duration should not be more than 15 days at a time. Unauthorised absence is an act of indiscipline. Refer to Manoj Kumar v/s Govt of NCT (W.P.(C) 2194/2012).
Disciplinary Action
I think the employee needs to be dealt with in a disciplinary proceeding, and punishment meted out as per evidence emerging in the case following principles of natural justice and departmental legal procedure.
From India, Pune
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3180Delhi Medical Council Guidelines on Medical Certificates
The Delhi Medical Council has issued guidelines on medical certificates: the date on which the patient was examined, nature of incapacity, degree of incapacity of the patient. The duration should not be more than 15 days at a time. Unauthorised absence is an act of indiscipline. Refer to Manoj Kumar v/s Govt of NCT (W.P.(C) 2194/2012).
Disciplinary Action
I think the employee needs to be dealt with in a disciplinary proceeding, and punishment meted out as per evidence emerging in the case following principles of natural justice and departmental legal procedure.
From India, Pune
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You can refer to the Standing Order Act of 1946 under the Discharge Simplictor:
(a) Continued ill health: The services of a workman are liable to be discharged on account of continued ill health, including loss of efficiency, permanent total/permanent partial disablement, or on account of illness for more than three months and has an infectious/contagious effect. In such circumstances, the workman shall be paid one month's salary in lieu of notice pay, and he will not be entitled to any compensation in lieu thereof.
(b) On giving wrong/false declaration or suppressing material facts at the time of obtaining employment or subsequently at any stage.
In the meantime, you can also refer to the Industrial Dispute Act under Sec 150B(c) for termination of the service of a workman on the grounds of continued ill-health.
As suggested by Nath Rao, you can obtain a medical expert from any government services for verification. If found to be false, you can take disciplinary action under the above sections.
From Taiwan,
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(a) Continued ill health: The services of a workman are liable to be discharged on account of continued ill health, including loss of efficiency, permanent total/permanent partial disablement, or on account of illness for more than three months and has an infectious/contagious effect. In such circumstances, the workman shall be paid one month's salary in lieu of notice pay, and he will not be entitled to any compensation in lieu thereof.
(b) On giving wrong/false declaration or suppressing material facts at the time of obtaining employment or subsequently at any stage.
In the meantime, you can also refer to the Industrial Dispute Act under Sec 150B(c) for termination of the service of a workman on the grounds of continued ill-health.
As suggested by Nath Rao, you can obtain a medical expert from any government services for verification. If found to be false, you can take disciplinary action under the above sections.
From Taiwan,
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Verification of Medical Certificate
As stated by learned contributors, first of all, get the verification of the medical certificate done. If the medical opinion of your consulting doctors gives a contrary opinion to what the Government Hospital Doctor has given, then on that basis, request the Medical Superintendent to constitute the Medical Board and ask the employee to present himself before the Medical Board at the scheduled time and place for examination. This is because the opinion of the Government Hospital Doctor needs to be overruled; otherwise, it carries more weight than that of a private doctor.
If the Medical Board overrules the opinion of the Government Doctor, then communicate that in writing to the employee. If he still abstains, then conduct a disciplinary inquiry before taking disciplinary action. If the medical opinion of the Medical Board confirms the opinion of the Government Doctor, and the employee is a workman within the meaning of the Industrial Disputes Act, then termination can be in accordance with the definition of Section 2(oo)(c) of the Industrial Disputes Act, wherein the meaning of "continued ill-health" has been explained by the Bombay High Court by referring to the Apex Court decision and other High Courts' decisions below:
Bombay High Court Case
Ramaswamy Murugesh vs Shri S.G. Bhonsale, decided on 21 June 2005
“The expression 'continued ill-health' in sub-clause (c) of Section 2(oo) does not mean uninterrupted continued ill-health, but what it means is ill-health for a considerable period and long duration affecting normal duties.”
If the employee is not a workman, then resort to relevant provisions under the State Shops and Establishment Act.
Thanks
Regards
From India, New Delhi
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As stated by learned contributors, first of all, get the verification of the medical certificate done. If the medical opinion of your consulting doctors gives a contrary opinion to what the Government Hospital Doctor has given, then on that basis, request the Medical Superintendent to constitute the Medical Board and ask the employee to present himself before the Medical Board at the scheduled time and place for examination. This is because the opinion of the Government Hospital Doctor needs to be overruled; otherwise, it carries more weight than that of a private doctor.
If the Medical Board overrules the opinion of the Government Doctor, then communicate that in writing to the employee. If he still abstains, then conduct a disciplinary inquiry before taking disciplinary action. If the medical opinion of the Medical Board confirms the opinion of the Government Doctor, and the employee is a workman within the meaning of the Industrial Disputes Act, then termination can be in accordance with the definition of Section 2(oo)(c) of the Industrial Disputes Act, wherein the meaning of "continued ill-health" has been explained by the Bombay High Court by referring to the Apex Court decision and other High Courts' decisions below:
Bombay High Court Case
Ramaswamy Murugesh vs Shri S.G. Bhonsale, decided on 21 June 2005
“The expression 'continued ill-health' in sub-clause (c) of Section 2(oo) does not mean uninterrupted continued ill-health, but what it means is ill-health for a considerable period and long duration affecting normal duties.”
If the employee is not a workman, then resort to relevant provisions under the State Shops and Establishment Act.
Thanks
Regards
From India, New Delhi
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Handling Employee Absence Due to Medical Reasons
Whatever the alleged illness cited by the employee for his long leave of absence, supported by a medical certificate issued by a registered medical practitioner, it is to be accepted as it is for obvious reasons. However, when suspicion arises about the genuineness of the illness or the requirement of long leave of absence from work due to such an illness, or the suitability of the concerned employee's retention in service despite continued ill health based on the normal nature of his job, these are important factors for making an appropriate decision by the employer.
Therefore, it is better to refer his case to a medical board constituted by a Government Hospital. The medical board will examine whether any further leave of absence is required in case of the continuance of the illness, or if he is fit to rejoin duty forthwith, or if the nature of the illness requires any change of job, and give its expert opinion accordingly.
From India, Salem
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Whatever the alleged illness cited by the employee for his long leave of absence, supported by a medical certificate issued by a registered medical practitioner, it is to be accepted as it is for obvious reasons. However, when suspicion arises about the genuineness of the illness or the requirement of long leave of absence from work due to such an illness, or the suitability of the concerned employee's retention in service despite continued ill health based on the normal nature of his job, these are important factors for making an appropriate decision by the employer.
Therefore, it is better to refer his case to a medical board constituted by a Government Hospital. The medical board will examine whether any further leave of absence is required in case of the continuance of the illness, or if he is fit to rejoin duty forthwith, or if the nature of the illness requires any change of job, and give its expert opinion accordingly.
From India, Salem
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