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Showing contexts for: unauthorised absence in Subhash Rathore vs State Of M.P. & Ors. on 22 August, 2019Matching Fragments
In the considered opinion of this Court, the punishment awarded appears to be on higher side and therefore, the same requires interference by this Court. Though, this Court would have remanded the matter back to the disciplinary authority for awarding lesser punishment but, the fact is that the petitioner is out of service since 20.03.2008 and therefore, the matter is being disposed of finally.
The Apex Court in the case of Raghubir Singh Vs. General manager, Haryana, Roadways, reported in 2014 (10 SCC, 301 was dealing with the issue of termination on account of unauthorised absence. In the aforesaid case, the Apex Court in paragraph Nos.29 and 30 has held as under:-
"29. Further, assuming for the sake of argument that the unauthorised absence of the appellant is a fact, the employer is empowered to grant of leave without wages or extraordinary leave. This aspect of the case has not been taken into consideration by the employer at the time of passing the order of termination. Therefore, having regard to the period of unauthorised absence and facts and circumstances of the case, we deem it proper to treat the unauthorised absence period as leave without wages. In our view, the termination order is vitiated since it is disproportionate to the gravity of misconduct alleged against him. The employment of the appellant-workman with the respondent is the source of income for himself and his family members' livelihood, thereby their liberty and livelihood guaranteed under Article 21 of the Constitution of India is denied as per the view of this Court in its Constitution Bench decision in Olga Tellis & HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.1222/2009 (s) (-6-) Ors. v. Bombay Municipal Corporation and Ors.[9] wherein it was held as under:-
30. The appellant workman is a conductor in the respondent-statutory body which is an undertaking under the State Government of Haryana thus it is a potential employment. Therefore, his services could not have been dispensed with by passing an order of termination on the alleged ground of unauthorised absence without considering the leave at his credit and further examining whether he is entitled for either leave without wages or extraordinary leave. Therefore, the order of termination passed is against the fundamental rights guaranteed to the workman under Articles 14, 16, 19 and 21 of the Constitution of India and against the statutory rights conferred upon him under the Act as well as against the HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.1222/2009 (s) (-7-) law laid down by this Court in the cases referred to supra. This important aspect of the case has not been considered by the courts below. Therefore, the impugned award of the Labour Court and the judgment & order of the High Court are liable to be set aside.
In light of the aforesaid judgment, this Court is of the opinion that in the case of the petitioner also, leave admissible and due, leave without wages or extraordinary leave or some lesser punishment could have been awarded to the petitioner.
The Apex Court in the case of G. Rajendra Vs. Vikrant Tyres Ltd and others, reported in 2002 (10) SCC, 438 was again dealing with the case of unauthorised absence from service.
In the aforesaid case, the order of dismissal was interfered with by the labour court and punishment of withholding of two increments with cumulative effect and denial of wages was substituted. In light of the aforesaid judgment also, the punishment in the present case is certainly disproportionate to the misconduct.