Tuesday, June 26, 2012

Habitual Absence

Habitual absence from work without leave is misconduct: HC

Mumbai, Dec 29 (PTI)
In a significant judgement, the Bombay high court has held that habitual absence from work place without taking leave or giving prior intimation amounts to misconduct on the part of employee.

"We are of the view that an employee who is in habit of remaining absent without prior sanction of leave, irrespective of the number of days, is guilty of misconduct under the rules," observed a division bench recently while upholding dismissal of Bharat Sanchar Nigam Ltd employee, Pandurang Kevne, who filed a petition challenging his removal.

Justices J N Patel and R P Sondurbaldota further observed, "In our opinion the reason for such misconduct is because it exhibits irresponsibility and lack of interest in work. It is writ large on the facts of the case that the petitioner is least interested in duty."

The Bench referred to Rule 3 of Central Civil Services (Conduct) Rules, 1964, which requires that a government servant must at all time maintain absolute integrity and devotion to duty.

A person who is in the habit of remaining absent without prior sanction of leave and remains absent for a long period of more than 10 days without leave or intimation, is not somebody who is devoted to duty or maintains integrity. The petitioner's conduct needs to be tested on this anvil, the judges said. 

The petitioner was chargesheeted in 1997 for misconduct of absenteeism. An inquiry held him guilty and recommended his removal from service. He filed an appeal before an appellate authority but it was dismissed. A reference was made by the government to Industrial Tribunal which upheld the punishment. Being aggrieved, the petitioner moved the High Court.

The petitioner did not dispute that he was absent during the period stated in chargesheet. His counsel B P Jakhade submitted that the entire period during which the petitioner was absent from service had been validly explained by him and his absence from duty was regularised by the respondent company by sanctioning different types of leave.

Jakhade contended that the period of continuous absence between January 1995 and May 1996 had been regularised by sanctioning half pay leave of 30 days and the remaining as earned leave. The sanction was post facto dated June 14,1996.

The days of absence on other occasions were either single day or a couple of days but not exceeding 10 days. For these days, either casual leave or PL was allowed.

As regards the absence from August 1996 to December 1997, the petitioner said part of it was earned leave. The balance period was treated as "DiesNon" (period that is neither counted in service nor considered break in service) thereby, regularising the same without payment as permitted under the Leave Rules. 

Counsel for BSNL, A S Rao, argued that even if the petitioner's leave was regularised, he cannot escape from the rigours of mischief of misconduct because the leave was not authorised.

The court agreed with Rao that misconduct under the rules is habitual absence without leave or intimation for more than ten days.

"In our opinion, the reason why such conduct is made misconduct under the Rule is that it exhibits irresponsibility and lack of interest in work. Rule 3 of Central Civil Services (Conduct) Rules, 1964 requires every Government servant to maintain absolute integrity and devotion to duty all the time.

Jakhade said since the entire period of absence had been validly explained, it cannot be regarded as misconduct under Rule 31 of Certified Standing Order and 3(i)(ii)(iii) of Central Civil Service (Conduct) Rules.

However, the court said the decision of the Tribunal in holding the petitioner guilty of the misconduct alleged against him and upholding the punishment of removal from service is a correct decision.

"It is writ large on the facts of the case, that the petitioner is least interested in his duty. The petition therefore, deserves to be dismissed," it ruled.

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