Absenteeism post ease of COVID-19 restriction

Six month away, we witnessed the deadly Second wave of the Pandemic COVID-19 across the nation. Maharashtra had one of the highest cases in India. Since then inoculation is opened to all Adults and the number game is steadily strong. Across India it is reported that around 100 Crore doses were administered. The Guardian Minister of Suburban Mumbai, Shri Aaditya Thackeray via his twitter account reported that 80% and 30% of the eligible population have received their 1st shot and 2nd shot respectively.

The Government of Maharashtra vide its Order dated 2nd August 2021 allowed Private offices to be opened in full capacity. MCGM vide its Order dated 2nd and 3rd August 2021 eased restrictions for shops and establishments.

 

Can an employee give Pandemic COVID-19 as a reason for not joining office?

Undoubtedly, if the employee lives in an area which is declared as a containment zone, it is imperative that the employee Work from home (if possible) until the situation resumes to normalcy.

In other cases, the employer reserves the right to ask the employee to join work physically. A recent example are of Information Technology companies like TCS[1] and Wipro[2] asking its employees to return to office. Both companies are one of the largest private employers in the country.

 

What if the employee refuses to join office?

It all depends on terms and conditions of the contract and whether the same was amended during the lockdown period. If the presence of the employee is required in the establishment/office and the employee refuses, then the employer can take appropriate action as per the terms of service after following the due process of law.

If the employee falls in the category of worker as defined under Industrial Disputes Act, 1947 then a Disciplinary proceeding may be initiated against the delinquent employee under Industrial Employment Act,1946.

 

Whether Absenteeism amount to misconduct and the employee’s services be terminated?

Any punishment imposed should be proportionate to the misconduct of the employee. The punishment for a habitual absentee would be different from an occasional absentee. The Hon’ble Supreme Court in Chairman & Md V.S.P. & Ors vs Goparaju Sri Prabhakara Hari Babu [2008] held that

‘…17. Once it is found that all the procedural requirements have been complied with, the Courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The Superior Courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. {[See Sangeroid Remedies Ltd. v. Union of India & Ors. [(1999) 1 SCC 259]}.

The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India also cannot, on the basis of sympathy or sentiment, overturn a legal order…’

 

Further it is imperative that during the Enquiry proceedings, it be proved that such absence from work was wilful on part of the employee. The Hon’ble Apex Court in Krushnakant Parmar vs Union of India [2012] held that

‘…19. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct…’

 

Hence, the employer needs to ensure that the above factors be looked when initiating action against an employee for absenteeism.

 

 

[1] TCS India’s largest private employers returns to office <https://www.bbc.com/news/world-asia-india-58339646>

[2] Wipro WFH ends

https://www.businesstoday.in/latest/corporate/story/after-18-months-of-work-from-home-wipro-employees-to-return-to-office-from-monday-306504-2021-09-12

 

Disclaimer

The rules of the Bar council of India prohibit Law firms from advertising and soliciting work through communication in the public domain. Bekay Legal has prepared this Website for the purpose of information and not for any sort of adverting. Bekay Legal does not intend to solicit client by displaying this on our Website. These materials have been prepared for informational purpose and do not serve as legal advice. No one should act upon this information without seeking advice from the concerned lawyer.
Your use of this website does not create any liability to the firm in any manner. The firm makes no warranties, representations or claims of any kind concerning the information presented on this site.

We are not advertising or soliciting any business/work. It is only for understanding about our activities and who we are. By entering this website, you confirm and acknowledge that you have voluntarily sought the information relating to and/or posted by Bekay Legal and there has been no solicitation / advertisement / inducement by either Bekay Legal and/or it’s partners and/or its members/associates.