One of our permanent workers was long absent, and when we inquired about his whereabouts, his colleagues told us that he went to Mumbai for personal reasons. Despite this explanation, we issued a show-cause notice and initiated a domestic inquiry due to his extended absence. After a month's time, we received a message informing us that he had been arrested in a theft case in Andhra Pradesh, where he was incarcerated, and a criminal case was in the hearing stage.
My question is whether we can terminate this worker by conducting an ex-parte inquiry and how an employer can be legally protected by taking this step.
From India, New Delhi
Acknowledge(0)
Amend(0)
450My question is whether we can terminate this worker by conducting an ex-parte inquiry and how an employer can be legally protected by taking this step.
From India, New Delhi
Acknowledge(0)Amend(0)
Dear Kumar,
Was the employee issued a show-cause notice for his long absence? Has he responded? If not, please issue a show-cause notice and, based on his response or non-response, you may proceed with an inquiry. It is not for us to say there will be an ex parte inquiry. If the employee does not appear for the inquiry, the inquiry officer may decide to conduct an ex parte inquiry.
In my view, we should issue a show-cause notice to the employee for his prolonged absenteeism. Based on his reply or lack of response, the information we have gathered regarding his arrest in a criminal case can be addressed at the appropriate time.
From India, Chennai
Acknowledge(0)Amend(0)
Was the employee issued a show-cause notice for his long absence? Has he responded? If not, please issue a show-cause notice and, based on his response or non-response, you may proceed with an inquiry. It is not for us to say there will be an ex parte inquiry. If the employee does not appear for the inquiry, the inquiry officer may decide to conduct an ex parte inquiry.
In my view, we should issue a show-cause notice to the employee for his prolonged absenteeism. Based on his reply or lack of response, the information we have gathered regarding his arrest in a criminal case can be addressed at the appropriate time.
From India, Chennai
Acknowledge(0)Amend(0)
Dear Mr. Kumar,
How long has the employee been absent?
Was the employee unauthorisedly absent from the first day of his absence, or did he initially take authorised leave for a certain number of days but then continued his absence without extension or notification, remaining incommunicado?
What is the source of the information regarding his imprisonment as an undertrial involved in a theft case in Andhra?
Has there been any official communication from the Andhra Police to your Management about his arrest and continued detention?
Is prolonged lock-up in Police custody a valid reason for suspending the employee under your standing orders or service regulations?
Can it be assumed that the knowledge of his arrest and detention is based on informal, verbal information from acquaintances of the absent worker?
In my opinion, in the absence of formal notification from the Police or his family regarding his arrest and detention, you can take action against the employee for the misconduct of unauthorised absence. You can formulate charges, send the charge sheet and all subsequent communications to the last known residential address of the employee through registered post, and conduct a domestic enquiry with proper notice. As a final step, if there is no response, consider publishing a notice in a popular vernacular newspaper.
After following due process and not receiving any response, you may proceed ex parte and terminate the employee's services based on proven misconduct of unauthorised absence.
From India, Salem
Acknowledge(0)Amend(0)
How long has the employee been absent?
Was the employee unauthorisedly absent from the first day of his absence, or did he initially take authorised leave for a certain number of days but then continued his absence without extension or notification, remaining incommunicado?
What is the source of the information regarding his imprisonment as an undertrial involved in a theft case in Andhra?
Has there been any official communication from the Andhra Police to your Management about his arrest and continued detention?
Is prolonged lock-up in Police custody a valid reason for suspending the employee under your standing orders or service regulations?
Can it be assumed that the knowledge of his arrest and detention is based on informal, verbal information from acquaintances of the absent worker?
In my opinion, in the absence of formal notification from the Police or his family regarding his arrest and detention, you can take action against the employee for the misconduct of unauthorised absence. You can formulate charges, send the charge sheet and all subsequent communications to the last known residential address of the employee through registered post, and conduct a domestic enquiry with proper notice. As a final step, if there is no response, consider publishing a notice in a popular vernacular newspaper.
After following due process and not receiving any response, you may proceed ex parte and terminate the employee's services based on proven misconduct of unauthorised absence.
From India, Salem
Acknowledge(0)Amend(0)
It does not appear to be a case of theft because such long detention generally does not happen in theft cases, and bail is granted. Looking at the pandemic condition, courts have become more lenient in granting bail. So, it is felt that there is more to it than the case of theft, and you may ascertain more facts as you proceed along the lines suggested by Learned Umakanthan Sir.
From India, Mumbai
Acknowledge(0)Amend(0)
From India, Mumbai
Acknowledge(0)Amend(0)
Dear Mr. Kumar, You can terminate the employee on ground of long absent without information (absconding) and failed to participate in the domestic enquiry.
From India, Mumbai
Acknowledge(0)Amend(0)
From India, Mumbai
Acknowledge(0)Amend(0)
Dear Kumar,
Yes, you have every right to proceed with proper disciplinary action - chargesheet and domestic enquiry independently and in parallel to the criminal case.
A lot of care has to be taken to ensure that all communications are sent to the last known address on record, as the charged individual may not be able to be present for the enquiry. It must be seen on record that all fair and reasonable opportunities are given.
Before considering the punishment of termination, the gravity of the misconduct and past record needs to be examined as a way of justification before awarding such a serious and extreme punishment, particularly in view of the probable ex-parte enquiry.
Regards,
Vinayak Nagarkar HR and Employee Relations Consultant
From India, Mumbai
Acknowledge(0)Amend(0)
Yes, you have every right to proceed with proper disciplinary action - chargesheet and domestic enquiry independently and in parallel to the criminal case.
A lot of care has to be taken to ensure that all communications are sent to the last known address on record, as the charged individual may not be able to be present for the enquiry. It must be seen on record that all fair and reasonable opportunities are given.
Before considering the punishment of termination, the gravity of the misconduct and past record needs to be examined as a way of justification before awarding such a serious and extreme punishment, particularly in view of the probable ex-parte enquiry.
Regards,
Vinayak Nagarkar HR and Employee Relations Consultant
From India, Mumbai
Acknowledge(0)Amend(0)Engage with peers to discuss and resolve work and business challenges collaboratively - share and document your knowledge. Our AI-powered platform, features real-time fact-checking, peer reviews, and an extensive historical knowledge base. - Join & Be Part Of Our Community.
How long will I live.zip
ABSENTEEISM.doc