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Unauthorised Absence – Right or Privilege

  • By Priya
  • July 17, 2022

One of the major workplace issues that my clients frequently come to me for resolution has been AWOL (absconding) employees. AWOL means  abandonment of employment and or absenting to work without permission from the boss, without providing a reason for absence. Today more than ever, with the flexibility of the hybrid working model, these cases seem to be on the rise.

Unauthorized absence impacts the business flow by disrupting the schedules and project management. It also adversely affects the operations and project delays resulting in an economic crisis. Departmental heads and teams lead would have to struggle with workloads, restructuring the team, and finding temporary replacements.

Any employer reserves a right to initiate appropriate action including termination from services of such employee. It is considered an unexecuted absence and the length of such absence doesn’t matter.

In Anupam Das Vs. Allahabad Bank & Ors [WPA No. 13189 of 2018] the Calcutta High Court opined that “An employee ought to appreciate that he has been appointed/employed for a particular purpose, for performing certain assigned jobs. Not reporting to duty means that the work which is assigned to the employee has to be performed by some other person, as the work ought not to be kept pending on account of the absence of an employee…The requirement of prior intimation is for the sole purpose of putting the employer on notice of the absence so that the work may be assigned to some other employee and is not kept pending. In the absence of proper prior notice, the employer will not be in a position to assign the work to any other person”.

Dealing with AWOL issues is complicated, functionally and legally. Every employee has a right to avail of leaves and to be absent to work under certain circumstances. Nevertheless, adhering to the company leave policy and availing leaves within the limit and as per the procedures laid out therein must be followed by every employee.

The Supreme Court of India in North Eastern Karnataka R.T. … vs Ashappa on 12 May 2006 held that“…remaining absent for a long time, in our opinion, cannot be said to be minor misconduct…his leave records were seen and it was found that he remained unauthorisedly absent on several occasions. In this view of the matter, it cannot be said that the misconduct committed by the Respondent herein has to be treated lightly.”

 If an employee is absent unauthorisedly for a day or two,  it cannot be treated as a serious offense, and initiating extreme steps for that is unwarranted. The way employees are expected to follow the leave policy and procedures in availing leaves, the employer also must follow the appropriate disciplinary procedure before proceeding to dismissal.

Supreme Court of India reasoned in  D.K. Yadav vs J.M.A. Industries Ltd on 7 May, 1993  that “The law must therefore be now taken to be well-settled that procedure prescribed for depriving a person of  livelihood must meet the challenge of Art. 14. 941 and such law would be liable to be tested on the  anvil  of Art.  14  and  the  procedure prescribed  by  a  statute  or statutory rule or rules or orders effecting the civil rights or  result  in civil consequences would have to  answer  the requirement  of Art. 14.  So it must be right ,just and  fair and not arbitrary, fanciful or oppressive.”

To-do or not-to-do: As an employer, you have no choice but to handle the impact on your business in economical and operational terms and find an appropriate and timely resolution. Firing the delinquent employee and hiring a new one again is not the best solution. Laws don’t support any action taken without following due process. Initiating a process according to the law is not only protective but is also beneficial to both parties saving from liabilities and long-term adverse effects.

To know more about how to handle absconding employees, and proper operational and legal procedures in detail follow our next blog post.

~ Priya Iyengar – Founder Partner & CEO, Compass Law Associates; Compass Conflict Resolutions

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