Rule 38: Gross misconduct

Finin2min analysis — operative rule mechanics

Full notified text — Rule 38

38. Gross misconduct.–(1) The following acts shall constitute gross misconduct for the purposes of
second proviso to sub-section (1) of section 68, namely:—

        (a) wilful destruction of employer‘s goods or property;
        (b) assaulting any superior or co-employee at the place of work;
        (c) criminal offence involving moral turpitude resulting in conviction in a court of law;
        (d) theft, fraud, or dishonesty in connection with the employer‘s business or property; and
        (e) wilful non-observance of safety measures or rules on the subject or wilful interference
        with safety devices or with firefighting equipment.

(2) (a) An appeal under sub-section (2) of section 68 shall be preferred to the competent authority in
Form-XII;

(b) The appeal may be made in writing and either handed over personally or sent under a registered
cover or electronically to the competent authority.

(c) When an appeal is received, the competent authority shall furnish a copy of the memorandum of
appeal to the employer, call for his reply thereto and also ask him to produce documents connected
with the issue of the appeal by fixing a date.

(d) The competent authority may ascertain further details, if necessary, from the employer as well as
from the appellant, and he shall consider the facts presented to him, if any, and shall give his decision.

 Provided that the Competent Authority shall dispose of the appeal within three months from the date
of receipt of the appeal:

              Provided further that the Competent Authority may, for reasons to be recorded in
writing, extend the said period for a further period not exceeding three months.

(e) In case the employer fails to submit his reply or produce the required documents within the
specified period, the competent authority may give his decision ex-parte.

Application and evidence

1. Primary statutory test — (1) The following acts shall constitute gross misconduct for the purposes of second proviso to sub-section (1) of section 68, namely:— (a) wilful destruction of employer‘s goods or property;
2. Additional operative limb — (2) (a) An appeal under sub-section (2) of section 68 shall be preferred to the competent authority in Form-XII;
3. Qualification / exception to test — Provided that the Competent Authority shall dispose of the appeal within three months from the date of receipt of the appeal:
4. Numerical or timing control — Provided that the Competent Authority shall dispose of the appeal within three months from the date of receipt of the appeal:
5. Code Section mapping — 68, 70. Read the mapped provision together with this text rather than treating the concordance as a substitute for it.
6. Prescribed-form link recorded in the corpus — XII. Confirm the current notified form/version before filing.

Cross-references & prescribed forms

Worked example

Q&A — Rule 38

Primary sources