9. Unauthorized absence, Non enumerated misconduct, No right to defy the orders of one’s superior

 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. 

Your's Kayveeyes