An employee willfully remains absent from duty only then he can be dismissed from the job --Jammu- Kashmir and Ladakh High Court

The Jammu and Kashmir and Ladakh High Court, in a recent judgment, has said that Before taking disciplinary action against an employee for unauthorized absence from duty, the disciplinary authority will have to prove that the employee was intentionally absent from duty.Only then the unauthorized absence of the employee can be treated as misconduct and he can be terminated.                                                            The court was hearing a case in which a C.R.P..F jawan had absented himself from duty for 39 days without prior intimation and prior permission.Unauthorized absence from duty was considered misconduct by the disciplinary authority and the C.R.P..F jawan was dismissed from service while taking disciplinary action.The order of dismissal from service by the Disciplinary Authority was challenged by the CRPF jawan in the High Court and sought to quash the order passed by the Authority.               The contention of the petitioner was that he was suffering from a mental illness called encephalitis sequela.Due to this disease, he had fits and was unable to control his body for a long time, he was absent from his duty during the treatment of the disease.The authority taking disciplinary action against him came to the knowledge that he was admitted in a hospital for treatment of an illness.Despite this the authority sacked him from the job.                                                                              The petitioner further argued that his absence from duty was not willful but was due to his severe mental illness.He told the court that even when the investigation was conducted against him, he was not in a position to defend himself due to his mental illness However, on the basis of this investigation report, he was given the punishment of dismissal from the job.                   Justice Waseem Sadiq Nurgal of Jammu Kashmir and Ladakh High Court while hearing the matter said that the petitioner served for 5 years but there was no allegation against him. His one-time absence was treated as improper behavior and he was terminated from his service.This absence of the petitioner was also due to his mental illness.The petitioner was not willfully absent from duty.                                                                             The court held that the disciplinary authority had failed to prove that the employee was willfully absent from duty.                 The court said that it is essential to understand the reason for the absence, every absence of the employee without any prior notice or prior permission cannot be considered as indiscipline.And this cannot be included in the category of misconduct.                                                                     The court referred to a Supreme Court judgment in Krishan Kant V. Parmar v. Union of India and others and observed that Absence from duty without any application or prior permission may be unauthorized absence but it does not always mean willful absence.There can be many circumstances like illness, accident, hospitalization which compels the employee to remain absent from duty.which may cause the employee to be absent from duty but in such cases the employee cannot be held guilty of failure to perform duty or improper behavior.                         The court, while observing the departmental inquiry conducted against the petitioner, observed that the manner in which the departmental inquiry was conducted was in violation of Rule 27 of the CRPF Rules.                                                           The court noted that the petitioner was not allowed to inspect the documents on the basis of which the allegations were leveled against the petitioner. The investigating officer did not even allow the petitioner to present his case during the investigation.No statement of the petitioner is recorded in the documents, which is in violation of Rule 27.The Court noted that the medical documents submitted by the petitioner during the Departmental Inquiry were also not considered by the Investigating Officer.                    The Court observed that the departmental inquiry conducted against the petitioner was in violation of Rule 27 of the CRPF Rules, and held that the dismissal of the petitioner from service did not stand the test of law.The court set aside the order of dismissal of the petitioner from the job and ordered the petitioner to be reinstated in his post.