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"Work is Worship". This adage is mostly observed by employees in the breach. Frequent absentism is a bane of the industry, loss in man-days on account of absentism is colossal and is next only to man-days lost on account of strikes and lockouts. Despite unauthorised absentism being a serious problem, it is not viewed seriously, resulting in severe loss to the nation. A solution to this predicament would benefit the nation, the industry and the employees tremendously.
2) Every employer-employee relationship is based on mutual agreement/contract guided by the GIVE AND TAKE PRINCIPLE, work for wages etc, this contract is not wholly written (if at all) and among the various implied terms is an implied term that the employee upon being engaged shall report for work and upon reporting the employer is obliged to engage him for work for which he is employed.
3) If the employee remains unauthorisedly
absent, i.e. absent without prior intimation and/or permission obviously he breaches the fundamental and basic principal of the contract, which he has entered into with the employer. Under the law of contract if a party violates or avoids the fundamental part of his contract then the contract could be terminated without any ado. However, contract of service is an exception to the normal law of contract.
4) The Law of Contract of Service as it stands today is
paradoxical. If the employer breaches the implied terms of contract, i.e. he fails to provide work to an employee when he reports for duty then the normal rule is that the employee is entitled to full wages not withstanding the fact that he was not required to work for the employer. This is on the basis that loss has been caused to the employee because the employer has refused to abide with his part of the contract. The doctrine of mitigation of damages does not haunt labour laws. However, if an employee unauthorisedly remains absent and thus breaches the fundamental implied term of the contract the employer cannot seek compensation for the loss caused by such unauthorised absence of the employee.
5) Absence from duty is considered a
mis-conduct. Clause 22 of the Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946 enumerates acts of omission and commission on the part of the workmen, which amount to misconducts. Sub-Clause (f) provides that "habitual absence without leave or absence without leave for more than 10 consecutive days or overstaying the sanctioned leave without sufficient cause or without proper or satisfactory explanation" shall constitute a misconduct. The explanation to the Standing Orders states that no act of misconduct which is committed on less than three occasions within a space of one year shall be treated as habitual. Clause 23 of the Model Standing Orders prescribes the action, which an employer is entitled to take against an employee found guilty of misconduct committed by him. One of the punishments which can be inflicted upon an employee is that of dismissal. However, sub-clause (3) of Clause 23 stipulates that no order of dismissal can be passed unless and until an enquiry against the workman in respect of alleged misconduct is held in the manner set out in sub-clause (4) thereof.
6) Unauthorised absenteeism can be broadly classified in two
categories:
a) Absent on account of ill health of the workman.
b) Absent for reason other than ill health of the workman.
1) In case a workman is absent without prior permission and/or intimation (and cites his ill health as reason for such absenteeism) then management would be justified in demanding medical certificate in support of the same. If the workman submits medical certificate issued by the ESI panel doctor then the employer is barred from punishing the employee in view of the proscription set out in section 73 of the Employee's State Insurance Act, 1948.
2) In the event medical certificate furnished by the workman is from a private medical practitioner then the management shall have a right to examine the genuineness of the certificate or call upon the workman to submit himself for a medical check up by a physician nominated by the company.
3) If the certificate produced is found to be bogus then management can proceed against the workman for unauthorised absence and also for producing bogus documents.
4) In the event the employee is frequently absent on grounds of continued ill health then management would be justified to come to the conclusion that the workman is unable to fulfill his part of the contract and can proceed to terminate the contract on that ground alone. In case of such termination it has now been held that it does not amount to retrenchment and if facts disclose that workman is remaining frequently absent on grounds of continued ill health and the nature of ailment discloses that the same cannot be easily cured then termination on ground of continued ill health would be available to the employer.
5) In the case of workmen of Bangalore Wollen, Cotton & Silk Mills Ltd. vs. its Workmen reported in 1962 I LLJ 213 (S.C.) a Constitution Bench of the Supreme Court of India had an occasion to consider the Order of termination passed by the Company against 10 employees on ground of continued ill health. It was the case of the workmen that their discharge was bad in law as it was not be preceeded by an enquiry. The Supreme Court observed on facts that the ten workmen who had been discharges on ground of ill health had undergone proper medical examination and the Medical examination revealed that they were not fit to discharge duties on account of advanced age coupled with ailments which had rendered them unfit.
6) The next issue which was considered by the Supreme Court was whether such discharge would amount to retrenchment. The Hon'ble Supreme Court while dealing with the said contention observed that a service cannot be said to be terminated unless it was being capable of being continued if it is not capable of being continued, i.e. to say in the same manner in which it has been going on before and it has been brought to an end that is not a termination of service. It the contract of service which is terminated and that contract requires certain physical fitness in the workmen. Where, therefore, a workman is discharged on the ground of ill health it is because he was unfit to discharge the service which had undertaken to render and, therefore, it really comes to an end itself.
7) The Supreme Court then observed that a retrenched workman has a right to re-employment under Section 25G of the Act. It further observed that re-employment could not be offered to the workmen who were discharged on ground of ill health as they were physically unfit to take up employment. In light of all the aforesaid circumstances, it held that discharge of workmen on ground of ill health would not amount to retrenchment and hence workmen are not entitled to retrenchment compensation. The Supreme Court up-held the Orders of discharge passed against the ten workmen in the aforesaid case.
8) The aforesaid termination preceded the insertion of Section 2(oo). The termination in the above case was prior to insertion of Section 2(oo) in the Industrial Disputes Act. After Section 2(oo) has been engrafted in the Act Sub-Section © thereof categorically provides that termination of service of a workman on ground of ill health would not amount to retrenchment.
9) However, the aforesaid case law set the tone that termination grounded on ill health if duly supported by proper medical examination should not be interfered by Courts and there is no question of grant of reinstatement. In the case of Ceat Tyres Ltd. vs. S. D. Sawant reported in 1999 I CLR 780 the High Court, Bombay was concerned with a matter arising out of discharge of a workman on ground of illness. The workman was proceeded against for frequent absenteeism all of which were attributed to his ill health. He was warned but, however, there was no improvement in his attendance. The company issued a termination Order on 22nd September, 1994. The workman impugned the said order and the Labour Court came to the conclusion that the company had not established that the workman was unfit to perform his duties upto the date of the Award and answered the Reference in favour of the workman.
10) The company being aggrieved by the said Order preferred a Writ Petition and the Learned Single Judge held that the ill health of the workman which is required to be established in such proceedings would be on the date of the order of termination and not during the pendency of the Reference and upto the date of the Award. It was made clear by the High Court that the Labour Court has to judicially scrutinise the material before the employer qua the workman as on date of taking of the action. The High Court came to the conclusion that based on the above material there was no doubt that the workman was remaining unauthorisedly absent and there was no improvement whatsoever despite disciplinary action having been taken. Relying upon the decision of Bangalore Woolen Cotton & Silk Mills Co. ltd. the Learned Single Judge held that once termination is on ground of illness there is no question of grant of retrenchment. The Court, therefore, set aside the Order of the Labour Court and upheld the order of termination on ground of ill health.
11) Therefore in case of absentism grounded on continuous ill-health if the action taken is granted on proper medical record and/or documents certifying continued ill-health there would be no difficulty in defending the action if challenged in Court of Law.
12) Absenteeism on other grounds including intention of abandonment due absence however presents a problem which is truly multi-dimensional. In the first place the standing order or Rules and Regulation have to be noticed. Depending on the Standing Order or Rules and Regulation the action will have to be moulded. This can be best understood by the decisions rendered in the following cases.
a) 1954 II LLJ 627
Muir Mills Company Ltd.
Vs
Sri Harbans Singh
The issue before the Labour Appellate Tribunal of India was permission to dismiss the workman on grounds of unauthorised absence. The Standing Order of the Mills prescribed dismissal for remaining absent without leave. In that case the workman was arrested for an offence and did not make any application seeking leave. Past record of the workman disclosed habitual absence. The LAT held that the Standing Order enabled the Mills to take action in case of absence without leave and accorded permission to dismiss.
b) 1957-AIR-SC-38
Burn & Co. vs. Their employees
The Supreme Court went to the extent of holding that if a workman had been arrested and kept in jail for more than two years then his services could be terminated without holding an enquiry. The Supreme Court concluded that continued absence of the employees and his inability to do work was obvious and it was difficult to see what purpose would be serve by a formal charge sheet being delivered to him and what conceivable answer he would give thereto.
a) 1958-I-LLJ-260
Indian Iron & Steel Co. vs. Their workmen
The Standing Order of the Company inter-alia provided for discharge of the workman remaining absent without permission for 14 consecutive days. Some of the workman who where taken in police custody in connection with criminal prosecution against them applied for leave which was refused by the management. The services of the such workman were terminated for remaining absent for 14 consecutive days. The Supreme Court following the principles laid down in Burns case observed that though it is true that a person arrested cannot come to work but it would be unjust to hold that in such circumstances that company was always give leave when an application for leave is made. The Supreme Court further notice that in case large number of workmen was arrested by reason of their questionable activities with a labour dispute the work of the company will be paralysed, if the company is forced to give leave to all for indefinite period. The Supreme Court further held that it was immaterial whether charges against the workmen were proved or not, the Company would be entitled to take action as it has to carry on its work. The Supreme Court, however, distinguished arrest at the instant of the company an observed that if the purpose of was ostensible to get read of them on pretext of continue absent then it would be mala-fide exercised of powers under the Standing Orders. The Supreme Court upheld the order of termination in the said case.
b) AIR-1959-(SC)-529
Burn & Co. vs. Their Workmen
The Supreme Court in this case held that absence of the workman without permission and without any application for the same amounts to gross violation of discipline entailing dismissal from service and if such workman is dismissed by his employer the Industrial Tribunal should not order his reinstatement. The Supreme Court also observed that even a Secretary of the Union cannot claim immunity for breaking discipline as his stands in the same footing as any other worker.
c) 1991-(62)-FLR-677
M. Arunagiri vs. Bata India Ltd.
In this case the workman was irregular in attendance. The management of the shop founded extremely difficult to conduct normal business of the shop because of unpredictable attendance of the workman. The workman was therefore served with an order wherein the attendance record and various punishments awarded from time to time set out. The management invoke clause 27 of the Standing Orders and terminated his services without enquiry.
The Division Bench of the Madras, High Court was of the view that such a termination would amount to retrenchment and as the same was affected without paying compensation the termination was bad in law. The Division Bench was however, observed that as the workman was not sincere in discharge of his duty and remain habitually absent the end of the justice would be met by awarding compensation in lieu of reinstatement.
d) AIR-1966-SC-492
Jai Shankar vs. State
This was a case of a removal of Government Servant from service for over staying his leave. The Supreme Court held that though the regulation provided for removal in case of over stay of leave the same ought to be regulated by observing the procedure laid down in Article 311 of the Constitution of India.
e) 1969-II-LLJ-799
Telco Vs. Prasad S. C.
Standing Order of the Company enable the employer to discharge worker on giving notice or wages in lieu of notice.
f) 1963-II-LLJ-58
Mahalaxmi Textile Mills vs. Labour Court
The Standing Orders of the Mills inter-alia provided that absence without leave for 8 consecutive days misconduct. It further provided that in avoiding punishment to a workman past record should be taken into account together with other extenuating or aggravating circumstances. In the case at hand there was no dispute that workman was absence for 8 consecutive days. However, his past record was not taken into account. The Division Bench of the High Court held that the Standing Order was mandatory in its terms and there was no option or choice left with the management. Hence order without consideration of previous record or other extenuating or aggravating circumstances would render the order bad-in-law.
g) AIR-1972-SC-32
Channabasappa vs. State of Mysore
This was a case of Police Officer who remained absent without leave. In reply to the charge sheet the Police Officer admitted the charge. The Supreme Court held that this was a clear case of indiscipline and the same was established. It refused to take a lenient view and held that dismissal order passed against the Police Officer was merited.
h) FLR-1996(72)-293
MANDEEP KUMAR VS.STATE OF HARYANA (SC)
In this case the Petitioner was dismissed from service for remaining absent from duties on various days. The management have converted some of the absence into casual leave. The workman was absent for couple of days on four occasions of which two occasion where marginal. The order of dismissal passed by the management was reviewed by the Supreme Court and it held that the workman ought to be given a fresh opportunity and directed his reinstatement on the condition that if the workman absence himself from duty without leave even on a single occasion during next two years his services may be discharged.
i) LLN-(2)-1997-SC-
HINDUSTAN PAPER CORPORATION
VS.
PURNENDU CHAKROBARTY
This was a case of an Assistant Manager who absented himself from duties and send a serious of application seeking leave on various grounds and finally on medical grounds without supporting medical certificates. The employee was also required by the Police Station for a serious offence of the murder. The Corporation, invoking rule which permitted termination of contract for proceeding on leave without prior sanction, terminated services of the employee. The Supreme Court upheld the termination though it was not preceded with an enquiry on the ground that principle of natural justice where observed as the workman was given a notice prior to invocation of the said rule.
l) In the case of D.C.M. Ltd. and Labour Court, Quota {1991(63) FLR page 315} the workman had remained absent on three occasions for which he was punished by imposing Order of suspension. The said workmen once again remained absent for more than 46 days for which he was issued a Charge Sheet. There was no dispute that he had remained absent without leave. However, the contention was that punishment of dismissal inflicted upon him was harsh and oppressive. The contention of the workman found favour with the Labour Court and in exercise of powers conferred under Section 11-A the Labour Court substituted the punishment of removal from service to one of stoppage of two annual grade increments without cumulative effect and reinstated the workman without back wages. The correctness of the aforesaid decision of the Labour Court was assailed by the employer by a Writ Petition filed before the Rajasthan High Court. The Learned Judge hearing the Petition observed :
" In all industries, workmen are employed in accordance with the need of the establishment and if a workman remains absent without sanction of leave or even without information, the work of the industry or at least machine or unit on which the workman is employed is likely to suffer and the charge-sheet which was served on the petitioner will show that it is clearly mentioned in it that the petitioner was absenting without sanction of leave as a result of which there was obstruction in the efficient functioning of the industry. There may be cases where there is a single act of absence without sanction of leave or after proceeding on leave over staying without extension of leave and in such a case lenient view may be called for, but in case where a workman is chronic defaulter a chronic absentee and in a habit of absenting himself without sanction of leave or over-staying without extension of leave, in my opinion, it cannot be said that under section 11-A of the I.D. Act it will be a sound, proper and reasonable exercise of discretion or jurisdiction for any interference in the punishment of removal from service of a workman. To me it appears that the learned Judge, Labour Court has not even taken into consideration as to whether the workman having been punished thrice on the identical charges and on one occasion he had remained absent as many as 46 days whether he deserves any leniency. Perhaps if he would have taken earlier conduct of the petitioner into consideration which was also subject to the charge-sheet, the learned Judge, might have come to a different conclusion and in my opinion though the punishment inflicted by the learned Judge, Labour Court is not appropriate to the nature of misconduct found proved against the workman but is not in every case where this court interferes under Article 226 of the Constitution".
m) In the case of NRC Limited Vs. NRC Employees Union reported in 2001-III-CLR-286 held that :
"It has to be borne in mind that the present case is not a case of an isolated act of absenteeism on the part of the workman. The absenteeism was frequent and habitual, over a prolonged period. The past record of the workman was unsatisfactory.
In so far as the question as to whether the past record was put to the workman before the order of termination was passed is concerned, it is common ground that the said submission has not been urged at any earlier stage of the proceedings. Model Standing Order 32(6), provides that in awarding punishment, the management shall take into account the gravity of the misconduct, the previous record, if any, of the workman and any other extenuating or aggravating circumstances that may exist. The employer was, therefore, entitled to look at the past record of the workman.."
n) In the case of A. H. Wadia Charity Trust & Ors. Vs. Neville Jathan & Ors. Reported in 2001-III-CLR-210 held that :
"..Petitioner Trust terminated the service of respondent No.1 for habitual late attendance in office-Termination was after domestic enquiry-Respondent No.1 challenged his termination by filing complaint of unfair labour practice under Item 1 of Schedule IV-Labour Court held domestic enquiry to be not fair and just further held punishment to be disproportionate - Labour Court directed reinstatement without back wages - Industrial Court confirmed the same and hence this petition - Petitioner contend that Labour Court, after holding enquiry to be not just and fair, should have given opportunity to the Petitioner to justify termination of service of respondent No.1 - Submission of the petitioner is rejected on two grounds; one is that petitioner did not exercise its right of leading evidence at the initial stage but only at the fag end of the proceeding and secondly respondent no.1 has admitted his late attendance and no purpose would be served by allowing petitioner to lead evidence in Court.
II. Punishment - Habitual late attendance in office - Respondent no.1 has given explanation to the same because of difficulties of travel upto office and that he was taking minimum lunch break, used to work even after office hours and was required to attend Chairman's bungalow and used to carry office work even to his residence - In view of this explanation, it is held that Labour Court and Industrial Court have rightly held punishment to be shockingly disproportionate and respondent is deprived of back wages for the period from the date of termination till Labour Court's award.."
o) In the case of Mahesh Kumar Narottambhai Kantharia And Administrative Officer, Nagar Prathmik Shikshan Samiti,Surat & Anr. Reported in 2002-(92)-FLR-215 held that :
" Termination-Services of petitioner terminated-For remaining absent-Petitioner, a peon in school remained absent from duty and continued to remain absent-A show cause notice also served on him-Remaining absent from duty is, no doubt, a grave and serious misconduct-The employer, on proof and on admission, has right to dispense with services of such employee.
There cannot be two opinions on the question that remaining unathorisedly absent from duty by employee is a grave and serious misconduct and on proof or admission of the same, the employer has all the right to dispense with the services of such an indisciplined employee. Reference here may be had to the decision of the Apex Court in the case of Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Education Institution V. Educational Appellate Tribunal. (1999 (7) SCC 332).
p) In the matter of Rushikeshwara Rao G. And Vazir Sultan Tobacco Industries Ltd., Hyderabad and Another reported in Labour Law Journal 2002-February-p.238 held that :
" Employees' State Insurance Act, 1948-Secs.64 and 73 -Employees' State Insurance (General) Regulations, 1950-Regulation 59, 60 and 64-Factory Standing Orders-Clauses 12 (g) and 22(2) (f)-Workman chronic absentee and engaging in political activities-Period of absence not proved relatable to period of sickness - Held on facts, charges against workman proved and punishment of dismissal not disproportionate."
1) It, therefore, follows that if an employee habitually absents himself from duty and the employer intends to inflict the maximum punishment then the same can only be done after a full fledged domestic enquiry. However, a fair and proper domestic enquiry is no guarantee that an order of dismissal for a misconduct of habitual absenteeism will be upheld by a Court of law. It must be noted here that Labour and Industrial Courts have now been empowered under Section 11-A of the Industrial Disputes Act, 1947 to give appropriate relief in case of discharge or dismissal and awarding lesser punishment in lieu of discharge or dismissal.
2)
Though unauthorised absence is misconduct, however, if an employer does not choose to take any action on an employee remaining habitually absent then he unwittingly grants him a bounty. The provisions of Payment of Gratuity Act prior to amendment of 1984 provides that an employee was entitled to gratuity if and only if he works for 240 days during a year. Thus prior to the amendment of 1984 an employee who did not fill in 240 days in any particular year or years was not entitled to gratuity in respect of that year(s) wherein he had not worked for 240 days or more. However, by Act 26 of 1984 the Parliament introduced Section 2-A of the Payment of Gratuity Act, 1972 with retrospective effect from 11-2-1981 as a result of which an employee will be deemed to be in continuous service even if he is absent from duty without leave. In view of the aforesaid legal provision though a workman has committed a misconduct he would still be entitled to the benefit as a result of the said amendment. It is to be noted that gratuity for the period of absence can only be denied if the employer institutes disciplinary proceedings culminating in an order wherein the absence is treated as break in service.
3)
The employer, therefore, is required to take cognisance of every incident of unauthorised absence and deal with it in terms of the Standing Orders in the event an employee is to be refused gratuity for the period he remains unauthorisedly absent. Habitual unauthorised absence from duty has been viewed gravely by Industrial Adjudicators.
13)
"Unauthorised absence from duty" must be understood as being distink from "abandonment" and "remaining absent beyond authorised leave entailing loss of lien of service". It must be noted that though there are very thin overlapping areas of operation in the above three contingencies each is distinctive unit.
14)
In conclusion, the employer must be aware and alive of his right in law to take action against an erring employee (who is indulging unauthorized absenteeism). The employer is duty bound to justify the extreme punishment of dismissal failing which the erring employee is entitled to reinstatement. In the circumstances, each instance of unauthorized absence must be viewed severely, action taken as per law and records maintained in respect thereof so as to justify the extreme punishment of dismissal.
15)
Unauthorized absentism has a tendency of snow balling into major problems over a period of time, if left un-attended- just like the modern day phenomenon of local terrorism growing to global terrorism.
(S. C. NAIDU )
Advocate High Court, Bombay
Chamber at
M/s.C. R. Naidu & Co.,
23, Examiner Press Building,
3rd Floor, Dalal Street,
Fort, Mumbai-400 023.
Tel.: 267 04 10 / 267 24 32 / 265 86 01
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