Hear employee on leave before sacking: Bombay high court

An employer cannot sack an employee, who is on prolonged leave without prior sanction, without giving him/her a chance to explain why he/she has been absent, the Bombay high court has said in a recent judgment.

The case in question was that of Khan Ayub MR Pathan, a peon working in Anjuman Khairul Islam, a college in Pune. Pathan had sought a day’s leave but he did not returned for nearly two months.

The college terminates his services on October 2, 1996, after he failed to respond to their letters and did not turn up despite reminders asking him to report to duty.

Upholding the order of the University and College Tribunal, Pune, that ordered Pathan’s reinstatement on August 14, 1998, the high court observed, “Even in case of an automatic termination of service of an employee who absents himself for a long period of time, the employer is duty bound to act in a fair, just and reasonable manner.” Holding that the college ought to have given Pathan an opportunity to explain his absence, justice Nishita Mhatre said, “The employer, therefore, cannot act in a whimsical, arbitrary and capricious manner.”

Pathan had applied for a day’s leave and not shown up at the college between August 7, 1996 and October 2, 1996. The college then took action under Rule 50 of the Maharashtra Non-Agricultural Universities and Affiliated Colleges Standard Code, 1984, and declared Pathan a deserter. Under Rule 50, an employee can be treated as a deserter if he is absent for more than 30 days without permission or explanation. The college contended that several letters were sent to Pathan’s address and ample opportunity was given to him to explain why he had been absent.

Pathan, however, said that he had not received any of the letters sent by the college as he was in hospital in Ambejogai. “The medical certificate issued to the respondent (Pathan) mentioned that he was suffering from hepatitis and was an indoor patient in the government hospital at Ambejogai between August 7, 1996, and October 17, 1996,” the court order said.

Mhatre rejected the college’s argument that the medical certificate was fabricated and observed, “There may be genuine reasons for the absence of an employee and it would be too harsh to accept the submission... that once there is an unauthorised absence for more than 30 days, the employee must be deemed to be a deserter.”