41. Unauthorized absence – Dismissal unjustified
The Principal Bench of the Central Administrative Tribunal quashed the order of dismissal and ordered reinstatement in a case where the said punishment was imposed on the charge of habitual absence. The Tribunal found that the charged officer had been on unauthorised absence on ten occasions during the period from 9.10.1985 to 3.2.1986, but there was no reference to the previous instances of unauthorised absence from the period nor subsequently. The Tribunal, therefore, held that the charge of habitual absence was not proved. The Principal Bench of the Central Administrative Tribunal in the case of Smt. Mohini Navani v. Union of India and others, reported in S.L.J. 1996 (10 p. 523 held that in the case of unauthorised absence if one has already resumed his duty, the order of dismissal from service unjustified. Only decision about the period should be taken.
42.
Misconduct – Definition by Kerala High Court
The
simplest definition of the word “misconduct” is provided by the Kerala High
Court in the case of K. Babu Vs UOI
(1986 (II) LLJ 474) and accordingly if an act or omission which an employer
considers to be against the interest of the smooth functioning of his
establishment and which is therefore objectionable is called misconduct,
43.
Non enumerated misconduct cannot form subject matter of disciplinary
action
In
the case of Glaxo Laboratories (P) Ltd Vs Labour Court and another ( 1984 (I)
LLJ 14) the Supreme Court held that an employee cannot be charge sheeted in
respect of an act of misconduct which is not provided for in the certified
standing orders. Non enumerated misconduct cannot form subject matter of
disciplinary action”
44.
Any ex-post facto interpretation of some incident may not be camouflaged as
misconduct.
In
the case of A.L.Kilara Vs Project and Equipment corporation of India Ltd (1984
III) ll) 186) the Supreme Court expressed as below “where misconduct when proved
entails penal consequences, it is obligatory on the employer to specify and if
necessary define it with precision and accuracy so that any ex-post facto
interpretation of some incident may not be camouflaged as misconduct
45.
No right to defy the orders of one’s superior
According to Bombay High Court in the case of A.A. Fernandes Vs Modern Mills Ltd and others (1990 (I) LLJ 538) “an employee, however old or senior in service has no right to defy the orders of his superior whatever be his grievances.
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