Absence without information does not amount to misconduct if justified by compelling circumstances beyond the employee's control, as established by relevant regulations and legal precedents.

Hon'ble Suneet Kumar,J.

1. Sri Arun Kumar Singh- I, learned counsel for the petitioner and Sri Ajai Kumar Srivastava holding brief of Sri Samir Sharma, learned counsel for respondents.

2. The petitioner was working as a conductor under U.P. State Road Transport Corporation Ltd (U.P.S.R.T.C.). and was posted in the office of Assistant Regional Manager, U.P.S.R.T.C., Cantt. Depo, Varanasi. The petitioner on 30.10.2006 was issued a charge sheet alleging therein that he had absented from duty without any information thus his conduct is against the rules of the Corporation. The petitioner submitted his reply stating that he had informed the diesel clerk before leaving the office and had also made an application to the concerned officer. The enquiry officer, after recording the statement of the witness, came to the conclusion that the petitioner had absented without information and proposed the penalty of dismissal from service.

3. Show cause notice dated 17.05.2007 alongwith enquiry report was issued to the petitioner and the petitioner submitted his reply on 05.07.2007 denying the allegations and reiterated his reply and further stated that on return to duty he had submitted application for medical leave as well as fitness certificate dated 14.10.2006 for his absence. The disciplinary authority accepted the enquiry report and its finding and passed the impugned order terminating the services of the petitioner.

4. Aggrieved, the petitioner preferred an appeal before the respondent no. 3 Regional Manager, U.P.S.R.T.C., Varanasi, the appellate authority dismissed the appeal by order dated 04.07.2008. Aggrieved by the said order, petitioner preferred revision before the Chairman, U.P.S.R.T.C Ltd. Headquarter Lucknow which was also dismissed vide order dated 28.07.2009.

5. The petitioner has assailed the orders dated 02.11.2007, 04.07.2008 and 28.07.2009 passed by the disciplinary authority, appellate authority and the Revisional Authority, respectively.

6. Submission of learned counsel for the petitioner is that even accepting the allegation as correct that the petitioner had proceeded without information, though it is denied, the petitioner on his return had given an explanation for his absence which was on the ground of his medical illness as well as his wife's illness. The petitioner on return, had submitted medical certificate which none of the authorities have disputed its authenticity or credibility. The illness of the petitioner is not being disputed by the Authorities, hence absence from duty is not wilful. In the facts and circumstances of the case, petitioner could not have been terminated from service. In support of his submission, learned counsel for the petitioner has relied upon the cases Krushnakant B. Parmar v. Union of India and another, 2012 AIR SCW 1633 Shayama Charan Tripathi v. State of U.P. and others, 2014(1) ADJ 280 and Virendra Kumar v. Union of India and others, 2008(10) ADJ 112 (DB).

7. In rebuttal, Sri Ajay Kumar Srivastava, learned counsel appearing for the respondents submits that the petitioner was given a fair enquiry and the procedure prescribed under the Regulations was duly followed and after providing opportunity finding was recorded that the petitioner absented without information and further the petitioner was a habitual absentee and the order of termination is fully justified.

8. Rival submissions fall for consideration.

In Krushanakant B. Parmar (supra), the Supreme Court held as follows:-

"16. 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.

18. 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 circ