Unauthorised Absence : No Misconduct, if management failed to consider leave application.

Unauthorised absence (or overstaying leave) is an act of indiscipline on the part of an employee. Whenever there is an unauthorised absence by an employee, two courses are open to the employer. The first is to condone the unauthorised absence by accepting the explanation and sanctioning leave for the period of the unauthorised absence in which event the misconduct would stand condoned. The second is to treat the unauthorised absence as misconduct, and hold an enquiry whereby punishments ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments or dies-on may be imposed. The extent of penalty will depend upon the nature of service, the position by the employee, the period of absence and the cause / explanation for the absence.

Recently, the Kerala High Court in Hindustan Organic Chemicals Ltd. v. Induchoodan, held that if an application for leave was submitted and it received no reply within a reasonable time, then, there is nothing wrong in employee assuming that the Management had no objection in granting the leave; and availing the same. Management cannot subsequently chargesheet the employee for any misconduct, let alone for ‘unauthorised absence’.

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About Thomas Geeverghese

Advocate, Ernakulam
This entry was posted in Disciplinary Proceedings, Misconduct and tagged , , , , , , , , , . Bookmark the permalink.

2 Responses to Unauthorised Absence : No Misconduct, if management failed to consider leave application.

  1. SINOJ JOSE says:

    Sir,

    I would like to know about the Notice period clause of an employer.If an employee leaves the job and if he is reday to pay the notice period for the duration he is not able to serve ,whether managemnet have discretion to hold his relieving.

    Kindly do let me know,i am working for a Pvt Bank and Bank insits me to work for 90 days,however i need to join my new employer within 45 days after getting the waiver.

    The problem getting worser ,since my job offer will not be applicable after 90 days of serving here.

    Kindly respond.

    • subrat kumar nayak says:

      An employee need not wait for the notice period if he wants to leave the job and to join elsewhere.The management have no right to refuse to relieve him.The notice period is a check for the management to remove the employee from job.

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