Burden To Prove Employee's 'Wilful' Absence From Service Is On Disciplinary Authority: Allahabad High Court

The Allahabad High Court has held that in departmental proceedings, burden to prove that the unauthorized absence was 'wilful' is on the disciplinary authority. In absence of such finding, unauthorized absence does not amount to misconduct.

The observation was made by a bench of Justice Irshad Ali while hearing the plea moved by a Medical Officer facing disciplinary proceeding for the charge of unlawful absence from duties during his foreign assignment period at Nigeria.

A censure entry was awarded to the Petitioner with stoppage of one increment, "without clarifying that whether it is permanent or temporary".

Counsel for petitioner contented that pursuant to Government Order dated 09.11.1984, Petitioner came back from Nigeria and joined his duties. State Government had regularized the foreign assignment period of the Petitioner; therefore, the petitioner could not be awarded an adverse entry. Further, Petitioner had made contributions to the retirement funds.

Counsel for the State argued that the rider in the agreement was that the Petitioner has to resign from his original position and there will be no lien available to him. No objection certificate granted for arranging passport for Nigeria was on condition that before moving to Nigeria, he will get necessary instruction about relieving. However, Petitioner departed without resigning from his original position and without permission. Therefore, he was directed to re-join his duties under PMHS cadre.

At the outset, the Court observed that State erred in law while awarding censure entry to the petitioner in view of the fact that on the one hand it regularized the foreign assignment period of the petitioner and on the other hand censure entry was awarded to him in pursuance to the disciplinary proceeding.

It further noted,

“the disciplinary proceedings held by the State authorities by and large do not adhere to the well settled principles of law in the matter of holding inquiry. This amounts to a dereliction of duty embodied under U.P. Government Servant (Discipline and Appeal) Rules, 1999. The irregularities in the enquiry leave enough scope for indiscipline and the guilty go unpunished in all those cases, where the procedural violations shield their misconduct. The discrepancies also prolong the disciplinary action contrary to the objects of service jurisprudence. The dormant role on the part of the State not to have a trained staff for disciplinary enquiry cannot be viewed lightly in every case. The disciplinary action must culminate into reformation and discipline.”

Reliance was placed on the decision of Supreme Court in Krushnakant B. Parmar v. Union of India and another (2012), whereby it was observed,

“The question whether `unauthorized absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances...If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be willful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.”

Accordingly, the order of punishment and award of censure entry were set aside.

Case Title: Dr. S.C. Asthana vs. State Of U.P. Through Principal Secy. Medi.And Hel. And Another 2023 LiveLaw (AB) 217 [Writ A No. 2000264 of 2000]

Case Citation: 2023 LiveLaw (AB) 217

Counsel For Petitioner: Gaurav Mehrotra

Counsel For Respondents: C.S.C.

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