THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE NOUSHAD ALI W.P.NO.12303 of 2005 21-04-2010 BETWEEN; M.Siva Rao ...Petitioner vs. The ACC-In-C, Akkulam, Thiruvanantha Puram and another ...Respondents THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE NOUSHAD ALI W.P.NO.12303 of 2005 ORAL ORDER: (Per GR,J) The petitioner filed an application O.A.No.280 of 2004 before th Central Administrative Tribunal, Hyderabad (Tribunal) assailing an orde dated 29-09-2003 of the 2nd respondent imposing on the petitioner th penalty of removal from service, in exercise of powers conferred by Rul 15(4) of the Central Civil Services (Conduct, Control and Appeal) Rules 1964 on proved allegations of unauthorised absence and refusal t perform the duties assigned. The petitioner was appointed in 1991 as a Chowkidar (group civilian under the physically handicapped quota. The terms of appointment did no contain any restrictions on the petitioner being assigned night duties no that he should be assigned only day time duties while serving as Chowkidar. A charge memo was issued to the petitioner on 30-05-200 enumerating ten (10) Articles of charge. Nine (9) of these relate t unauthorized absence for various periods ranging from one (1) day t fourteen(14) days during the generic period 25-11-2002 to 23.03.2002 The last Article of charge relates to refusal by the petitioner to serve a Chowkidar at Beach fencing on 07-03-2003. A Board of Inquiry wa constituted in respect of ten (10) Articles of charge enumerated in th charge memo. The Board of Inquiry considered the Articles of charges, th explanation of the petitioner including his brief statement of the case, th evidence presented at the inquiry including certain documents. Th petitioner asserts now that he sought copies of certain documents but wa not furnished. The Board of Inquiry recorded its findings, holding th petitioner guilty of all ten charges. Consequently, the 2nd respondent b the order dated 29-9-2003 imposed the penalty of removal from service o the petitioner. The petitioner preferred an appeal to the 1st responden appellate authority, which was rejected on 18-11-2003 confirming th penalty imposed by the 2nd respondent-primary authority. Aggrieve thereby, the petitioner preferred O.A.No.280 of 2004 before the Tribuna which by the order impugned herein dismissed the O.A. confirming th order of the primary and appellate authorities. As seen from the ten Articles of charge, the petitioner is alleged t have absented from duties without leave or prior intimation on nine (9 occasions during 25-11-2002 to 02-03-2003, as follows:- 1. for 14 days from 25-11-2002 to 08-12-2002, 2. for 14 days from 16-12-2002 to 29-12-2002 3. for one day on 02-01-2003, 4. for 14 days from 06-01-2003 to 19-01-2003, 5. for 15 days from 20-01-2003 to 09-02-2003 6. for 2 days on 12th and 13th March, 2003 7. for one day on 15-02-2003, 8. for 4 days from 17-02-2003 to 02-03-2003, 9. for 14 days from 10-03-2003 to 23-03-2003. The petitioner is also alleged as Article No.10 of the charge to hav refused to serve at Beach fencing duty on 07-03-2003. The Tribunal while rejecting O.A. 280 of 200 recorded that the charge against the petitioner relate to repeated absence from duty, the charge are based on documents; that the applicant admitted in his rejoinder in th O.A that he had requested the respondents to arrange for light duties an not to post him at night duties due to physical handicap, which was no considered; that the applicant admitted to be submitting leave application whenever posted to night duties; that this persistent conduct of th petitioner constitutes defiance and unwillingness to perform the duties o Chowkidar, which include the night duties as well; that the petitione cannot refuse to do night duties on the ground of physical handicap, whic does not in any manner impinge on the performance of night duty; that th charges were established on the basis of documentary record, th petitioner’s admission as to absence during the relevant charge period; th explanation of the petitioner for the absence was not convincing; there wa no infirmity in the order of removal passed by the primary authority a affirmed by the appellate authority of the employer. The Tribunal als rejected the petitioner’s contention that the penalty imposed wa shockingly disproportionate to the gravity of the misconduct asserted an established. Before us the self same contentions are urged for the petitioner and i addition, the learned counsel would contend that as there was no refusa of the leave applied by the petitioner on each of the occasions, th absence of the petitioner could not legitimately be characterised a unauthorised absence nor as misconduct alleged and found thereupon The learned counsel would also contend that the petitioner was foun guilty in a proceeding on the basis of certain documents, which were no furnished to the petitioner. These documents are stated to be pertaining t the leave applications of the petitioner and to the refusal for such leave which are not established to have been communicated to the petitioner. The substratum of the petitioner’s contention as to denial of a fa opportunity and violation of the principles of natural justice is on th assumption that when a public employee applies for leave, there is presumption of its sanction and in the absence of communication of refusa there is a deemed sanction or at any rate that without a refusal bein communicated, the absence of a person from public employment woul not tantamount to unauthorized absence. This is a contention, which ha no basis in law or in the jurisprudence of public employment. Persons i the public employment have no right to serve the State at their pleasure Article 310 of the Constitution normatively signals that public service is a the pleasure of the Governor or President as the case may be; suc pleasure is hedged in by the procedural and substantive requirement enumerated in Article 311. No person in public employment has the right t come to service at will nor to absent from services again at will. Absenc without sanction of leave (except where the absence is for emergen contingencies) is conceptually and ever an unauthorised absence. A justification for such unauthorised absence when made a charge i disciplinary inquiry will have to be established by the delinquent publi servant and the burden is on him to establish that his unauthorise absence was justified even without prior intimation, on account of som medical or other exigency. Public services and service of the State canno be at mercy of moonlighting employees. In the circumstances, the consideration of material in the disciplinar proceedings as to the petitioner’s absence or his having applied for leav or as to the rejection by the employer of such leave includin communication of the refusal, have not in any way prejudiced the outcom of the disciplinary proceedings. The petitioner admits as rightly pointe out by the Tribunal to have been absent on nine occasions and to hav refused to serve on the tenth. The period of absence from duty or the date of absence are not in dispute and that the petitioner applied for leave fo nine (9) of the occasions is also not in dispute. It is also not in dispute tha the petitioner absented without sanction of the leave. No medical or othe exigency is pleaded in justification of any of the several spells of absence Conceptually therefore each episode of absence from duty constitutes o text and authority an unauthorised absence. Non communication of an documents as to the petitioner’s application for leave are of n consequences and have no in any manner pejoratively impacted th petitioner, as the fact that petitioner applied for leave was not in disput before the disciplinary authority. As the petitioner is found to hav absented on nine occasions and to have refused to perform the dutie assigned on the tenth (10) occasion, all these species of misconduc occurring within the period 25-11-2002 to 07-03-2003. In the considere view of this court the conduct of the petitioner is serious conduct. Th punishment of removal visited on the petitioner is not grossl disproportionate to the proven conduct of the petitioner. It also requires to be noticed that the scope of judicial review whethe by the Tribunal or by this Court under Article 226 of the Constitution i limited. As pointed in Union of India Vs. Parma Nanda ([1]) interferenc with the findings of a disciplinary authority can only be on the ground o perversity. In Para.27 Parma Nanda spelt out the principle that th jurisdiction of the Tribunal (in that case also the CAT) to interfere wit disciplinary matters or punishment cannot be equated with an appellat jurisdiction. The apex Court reiterated the well known principle that th power to impose penalty on a delinquent officer is conferred on th competent authority either by an act of legislature or Rules made under th proviso to Article 309 of the Constitution and if there has been an enquir consistent with the Rules and in accordance with principles of natura justice, what punishment would meet the ends of justice and requirement of administrative discipline is a matter within the expert opinion an domain of the employer. Only where the punishment visited on delinquent employee is utterly perverse and shocking in relation to th gravity of the misconduct established, is a narrow window of judicia review available. In the factual substratum of this case, the petitioner has not establishe such perversity or shocking disproportionality in the punishment of remova imposed on the petitioner, as rightly held by the Tribunal. The learned counsel would place reliance on the decision of th learned Division Bench of this Court in the Divisional Manager, LIC Vs S.Rajan and others ([2]). In this case the charged officer was an Assistan on the ministerial side of the LIC establishment and was unauthoirsedl absent. In para.10 of the judgment, the learned Division Bench observed: “For the foregoing reasons and for the reason that there is n serious misconduct of misappropriation or insubordination, we are o the considered view that the harshest punishment of removal i uncalled for.” It is a settled principle of precedential theory that the conclusions of court on the quantum of sentence is not a ratio decidendi havin precedential value. The learned Division Bench, in the facts of that cas had found that the punishment of removal passed on an Assistant servin in the ministerial side of the LIC did not constitute misconduct of a degre justifying the extreme punishment of removal as it was not a misconduc akin to misappropriation or insubordination. This judgment and th observations in para.10 of this Court referred to above do not signal generic principle of law that unauthorised absence can never constitut misconduct of a gravity justifying a penalty of removal or dismissal from service. Unauthorised absence can be of varying degrees and the gravit of the conduct depends upon factual context and the nature of th functions to be performed. The petitioner in the present case was a Chowkidar in a defenc establishment. His refusal to perform the duties assigned and withou reasonable cause was on successive (9) occasions and within short spa of time. Such conduct cannot be equated to the unauthorised absence of ministerial employee of LIC. We also do not understand the judgment o the learned Division Bench to mean that unauthorised absence is alway a benign conduct. On the analyses above, this Court discerns no ground fo interference. The writ petition is without merits and is accordingly dismissed. N order as to costs. ______________ GODA RAGHURAM,J ______________ NOUSHAD ALI,J 21st APRIL 2010. TSNR [1] AIR 1989 S.C. 1185 [2] 1996 LAB.I.C.490