Unauthorized Absence From Service, Sufficient Ground For Dismissal, Tripura High Court Upheld Employee's Termination

A single judge bench in the High Court of Tripura, composed of Justice T Amarnath Goud ruled that the petitioner's unauthorized absence was a sufficient ground for his termination from the service as he was given sufficient opportunities to respond. Background facts of the case The petitioner (Employee) was appointed as a deputy secretary in the Tripura board of secondary education. He filed a writ petition under article 226 of the constitution of India, requesting for arrear pay and current salary along with the interest starting from the date of 13 July 2021. The employee claimed that he was rightfully present from 13.07.2021 to 31.07.2021, 16.12.2021 to 25.04.2023 and from 28.04.2023, asserting that he was reportedly marked absent despite attentively working on these days. Subsequently he issued a memorandum explaining his position to the authorities. In spite of this a disciplinary committee was set up , finding him guilty of grave irregularities and further recommended for his removal leading to his termination. The employee challenged the termination order on the grounds of Article 14 and violation of natural justice. It was contended by the employee that the termination order which was passed was conflicting with the principles of natural justice. He argued that despite the submission of his explanation in the form of memorandum, the same was disregarded by the respondent- authorities. Also he claimed that no necessary opportunity was given to him for proper explanation and the issuance of show cause notice by the respondent was given without conducting a proper enquiry and was further violative of Rule-10 of Tripura Board of Secondary Education, 1982 (TBSE) Rule. On the other hand, it was contended by the respondent firstly, that the employee was without authorization, absent from the dates presented above. Secondly, the respondent argued that proper opportunity was given to the employee before the issuance of notice. Also that fair chance of hearing was again given before the committee, and the rules and regulation of TBSE was followed on the date of passing. Thirdly, the opportunity to personally appear was also given to the employee, before the termination order. Findings and observation of the court It was observed by the court regarding the question of unauthorized absence on 13.07.2021 to 31.07.2021, 16.12.2021 to 25.04.2023 and from 28.04.2023, the employee failed to adequately provide sufficient evidence to determine that he was present during those days, such as affidavits, colleagues or attendance records including that he was present on those days. This lack of evidence led the court to conclude that he was not attending on those days. The case of Krushnakant B. Parmar v. Union of India and Another (2012) was relied upon by the court wherein the Supreme Court held that absence from duty due to compelling circumstances beyond the employee's control, such as illness or hospitalization, cannot be considered willful. While such absence may amount to unauthorized absence, it does not automatically qualify as misconduct. The D.K. Yadav v. J.M.A. Industries Ltd. (1993), as well as State of Orissa v. Dr. (Miss) Binapani Dei and Another cases were also relied upon by the court wherein the Supreme Court held that natural justice requires that no adverse action be taken against the affected individual without informing them and providing a fair opportunity to respond. Even administrative orders involving termination of employment, must comply with procedural fairness under Article 14 of the Constitution. Further the case of Life Insurance Corporation of India v. Om Prakash was relied upon by the court wherein the Supreme Court held that an employee abandoning service without informing the employer and securing alternate employment cannot claim relief for termination based on procedural lapses. The Court emphasized that such conduct disentitles the employee from relief under Article 226 of the Constitution, as procedural deficiencies do not override clear evidence of abandonment and misconduct. It was found by the court that the employee was given more than two opportunities for his explanation including personal hearing before the final order, leading to court concluding that the Rule 10 of TBSE was followed. It was held by the court that employee was on unauthorized absence from the service which is a sufficient ground for termination as he was given multiple opportunities to respond. Therefore, the court dismissed the writ petition, upholding the employee's termination. Case no. : WP(C) No. 797 of 2023 Counsel for the petitioner: P. Roy Barman, Sr. Advocate; S. Bhattacharjee, Advocate; K. Nath, Advocate Counsel for the respondent: D. Sarma, Addl. G.A. ; Ratan Datta, Advocate Click Here To Read/Download the Order

Unauthorized Absence From Service, Sufficient Ground For Dismissal, Tripura High Court Upheld Employee's Termination

Namdev Singh

Tags