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Avinash Kumar Sharma (Sr. Manager HR)     22 December 2010

TERMINATION IN CASE OF ABSCONDING EMPLOYEE

Dear Sir,

Can we terminate the services of an empoyee in case of his  absenting . continously for 10 days with out information? What is the full process with out legal implications to terminate such employee.

Thanks & Regards,

Avinash Kumar Sharma



Learning

 10 Replies

Isaac Gabriel (Advocate)     23 December 2010

Send notice to the last known address, issue press publication about the intended action prescribing dateline within which to report for duty, and if no response, you can issue termination orders.

SRISHAILA.DHARANI (Advocate&consultant)     23 December 2010

You have to issue a legal notice to him , to attend for duty and thereafter, if that person didn't appear for the duty, you give a paper publication narrating the facts, to appear for an enquiry to be conducted in your premises mentioning the date and time of enquiry.And also inform in the paper, if he didn't appear on the enquiry date, he will placed exparte and enquiry will  conducted and will be dismissed from services.

srishaila

09741425514

bangalore

sdharani120@gmail.com

V. VASUDEVAN (LEGAL COUNSEL)     23 December 2010

Please check if the Standing Order (Model) is applicable to your establishment. In such case, you will have to the adopt the procedure as prescribed by the Standing Order. To determine whether the standing order is applicable, you need to be provide, the place/state of the establishment, number of employees - category, etc.

vasudevan

Pathikrit Naha (DGM - HR & ADMIN)     23 December 2010

Srishaila gave you correct reply. In model standing order also 10 days continuous absence considered as misconduct. You can study whether any certified standing order is applicable there or not. Certification required based on number of employees.

If you cannot serve the notice th' post whatever , you can also display in the notice board, it will presumed notice has been served. paper add is also a better process- but cost is involved.

Kumar Doab (FIN)     23 December 2010

In case of private sector e.g Banks/Insurance Companies/Telephone companies a common tactics adopted is the Head of Sales/Branch Head tells verbally to an employee you need not come to office and later the person is declared as absconding.

HR is asked to proceed with termination and an employee has to compile the file.

You may check the bare facts and approach the employee to know both sides of the story.

Termination shall affect the career and employment options of the employee.

A properly advised employee may challenge the order.

 

Learned members of the forum may kindly excuse for mentioning:

In India.at the workplace the Japanese model suits most e.g Kaizen,but it the least practiced, and the US model " Use and Throw"suits least , but is the most practiced.

Some reform has to take place.

Shreyas Zinjarde (Advocate/Consultant)     24 December 2010

I endorse the opinion of Mr. V Vasudevan. Moreover, first check all inward mail. One might find simple communication from the employee/relatives also ask his Supervisor whether any oral intimtion has been received and lastly find from the Police Authorities whether this employee ahs been detained. The provision for remaining absent for more than 10 consecutive days has explanation/proviso.

S.G.Zinjarde

Advocate

1, Indra Anand Apts, Dr. Banerjee Road, Dhantoli, Nagpur 440012 (Mah)

+919822579522

sinuvasu (advisor)     25 December 2010

yes it is a common procedure for unauthorised absent from the employee point of view.But the prevaling fact is that the employee ultimately approach the competent  court of law to get the ultimate relief only on the ground that he is an  illitrate or unaware of the legal facts/circumstances.And from employer point of view they basically relay on the ground of limitation.Remember one thing if a employee is least educated then his remeady  for delay will be condoled otherwise there will be a ready reference to sack or terminate him permanently, but as a employer in such circumstance u r under a obligation to clear all his pending monitary dues..Competent court will atleast provide such a common remeady..for detail discussion or guidance ur free to call or contact  me in my cell.no-9039278705/9827174672.

with best regard.

shrinivas.

Adv,Central Administrative Tribunal...


(Guest)

 

Originally posted by :Avinash Kumar Sharma
"
Dear Sir,

Can we terminate the services of an empoyee in case of his  absenting . continously for 10 days with out information? What is the full process with out legal implications to terminate such employee.

Thanks & Regards,

Avinash Kumar Sharma
"

 

Good discussion so far. I admire the frankness of Mr. Kumar, who has pointed out the real ill practices of some organization, which of course exist.

 

Anyway, Mr. Avinash, efore taking any drastic measure, you first need to search about the provisions on the offence of unauthorise absence in your own manuals, like the Employee Handbook, Standing Orders, Leave Rules, Employee Conduct and Discipline Rules, whatever exist out of these manuals. Exept in he case of apprentice or probationer, termination of services is not an easy task, as services and exit from service of employees are guided by some set of rules. If rules and procedures are not oserved, he employee can have an upper hand can challenge the decision of the management and can get the orders quashed hrough the court of law. You therefore need to take action as per the guidelines provided in the Sanding Orders or the mployee Conduct and Discipline Rules, as the case may be.

 

You may have to adopt due proess of taking disciplinary action aainst the employee by giving him opportunity to defend himself. We must not always think about the fault of the employee. There may be some circumstances beyond his control, like serious illness or accident of his own or some family member, or even death, where if termination is enforced without keeping in view of all the circumstances lading to his absence, that would be a total injustice to him and even denial of his other service related benefits also.

 

If duing the course of disciplinary proceedings his guilt is established only then you can terminate him as a matter of punishment, otherwise not.

 

So, please check the service rules, as may have been in force in your organisation for taking necessary action.

 

PS Dhingra

CEO cum Management & Vigilance Consultant

Dhingra Group of Consultants

New Delhi

Kirti Kar Tripathi (lawyer)     22 January 2011

 

Termination on account of absence of service, I think, this very harsh punishment and in case, it challenged, the employer has no case., even he succeeds  in proving the allegation of long absence. Moreover, this amount to misconduct under the law and before taking any punitive action, the employers is liable to issue charge sheet, ask explanation and conduct domestic enquiry. Even there exists any such condition of termination in service rules or standing order i.e,  absenting  continuously for 10 days with out information, the employer is liable to comply all the formality as referred above. The Hon'ble Supreme Court in Scooter India Versus Mohd Yaqoob specifically held that the employer is bound to comply the procedure of enquiry followed show cause notice in case he terminate the service on account of absenting  continuously days with out information, even if the standing orders contains such condition. 

 

Avinash Kumar Sharma (Sr. Manager HR)     22 January 2011

Thanks Sirs,I have learnt a lot from your valuable advice.

Avinash Kumar Sharma 


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