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178.

8. On the other hand, learned counsel for the second respondents would vehemently argue and contend that the petitioner has been in the habit of remaining unauthorisedly absent right from the date of his employment. The assessment of the doctor that the petitioner should seek transfer to some other place other than Bengaluru was of the year 2008 and the same cannot be pressed into service in the year 2015. He would place reliance upon the judgments of the Apex Court in the cases of NORTH-EASTERN KARNATAKA RT CORPN. VS. ASHAPPA reported in (2006) 5 SCC 137, UNION OF INDIA AND OTHERS VS. BISHAMBER DAS DOGRA reported in (2009) 13 SCC 102 and UNION OF INDIA VS. P. GUNASEKARAN reported in (2015) 2 SCC 610 and submits that misconduct of unauthorized absence cannot be pardoned and the dismissal is the only penalty that can be imposed upon for such unauthorised absence.

The Apex Court in the subsequent judgment in the case of KRUSHNAKANT B. PARMAR V. UNION OF INDIA reported in (2012) 3 SCC 178, has held as follows:

"16. In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether "unauthorised 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 wilful or because of compelling circumstances.

17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.

18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct.

19. In the present case the inquiry officer on appreciation of evidence though held that the

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NC: 2026:KHC:19168 HC-KAR appellant was unauthorisedly absent from duty but failed to hold that the absence was wilful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty.