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The employer can convert unauthorised absence in the leave without pay

Shivendra Pratap Singh

Advocate

04/05/2020

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An employee of the public sector bank remains absent from work for 18 to 20 days in a month. He is attending the office only for 10 to 12 days in a month due to spinal problem. The employer can convert unauthorised absence in the leave without pay. When the employee took leave on a particular day the employer marked that leave as leave without pay or an unauthorised leave.

The employer has counted public holiday and Sunday in the unauthorised leave. therefore, The employee suffered a lot due to such an illegal act of the employer. If the employee clears the UPSC examination then would there be a problem in getting NOC from the employer?

Question from: Uttar Pradesh

The employee should take proper leave from the employer except in the sudden medical illness. Proper sanction of leave is mandatory according to the service rule. You are employed in a public sector bank, your service will be governed by the service rule of that particular bank.

Sanctioning leave and nature of leave is the part and parcel of the service rule. Therefore, you should read the service rule for further clarification. Here I am giving advice on the general rule pertaining to the unauthorised leave and the leave without pay.

An employer can treat unauthorised absence as the leave without pay

The leave without pay does not mean a sanctioned leave from the employer. He should take the prior leave from the employer. The leaves should be sanctioned by the competent authority. Being absent from work without taking leave is an act of negligence. In this situation, the employer can convert unauthorised absence in the leave without pay.

If the employer treats such an authorised absence as leave without pay the employee cannot claim that he was on the sanctioned leave. A sanctioned leave is a different thing than the unauthorised absence. The employer can treat such an absence as leave without pay to maintain the service record of the employee. Such an act of the employer does not confer any legal right to the employee.

The employer can terminate the employee on the basis of unauthorised leave despite that he has shown that leave in the service record as leave without pay. Being absent without taking proper leave is misconduct by absence [State of Madhya Pradesh vs Harihar Gopal (1969) 3 SLR 274 (SC)].

Your employer is free to treat your unauthorised absence as leave without pay. When he treats as such then it does not matter that public holiday and Sunday were are also included therein. The employer may give you NOC but simultaneously it can impose any fine under the service rule. You have caused loss to the employer by remaining absent from the work. Therefore, you should compensate the employer to the extent of that loss.

Unauthorised absence is misconduct and it can form the basis of termination. When it is a ground of termination then you can seek no-objection certificate after paying damages to the employer.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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