Can charge-sheet be given for unauthorised absence during pendency of leave?
Guest
(Querist) 23 November 2014
This query is : Resolved
2.5 years before, I applied for a leave (2 month before proceeding on leave). Till the end it was not decided and due to urgency I proceeded for leave. However, before proceeding on leave, I persuaded hard to get it sanctioned in the meanwhile. There was no other problem in sanctioning leave. The leave was kept pending by the authority , however, saying it will be sanctioned later. Later that authority got transferred, leaving my matter pending. The leave application is still pending and not decided.
Later I joined office. The leave application was still pending.
However the new boss is saying that I will be charge-sheeted for proceeding on leave without prior sanction. I explained him the whole situation and requested first to decide my leave application, and if I don't deserve leave and it is rejected, then only decision of charge-sheeting be made, but he is unmoved.
My query is,
Can a govt. employee be charge-sheeted for absence (proceeding on leave during pendency of decision on leave application) while keeping leave application pending (after so long and still pending).
Guest
(Expert) 23 November 2014
Unauthorised absence is not considered as leave. Unless granted officially, the period of absence is treated as unauthorised absence and an event of indiscipline, which is subject to disciplinary action against the absentee.
Presently, as against your perception, your leave application can be said to be pending, but NOT the leave, the period of which is already over during the period of your absence two & half years back. Leave should not have been taken as granted unless formally approved by the competent authority even in noting on file, if not conveyed formally.
After decision on your pending application to grant leave, there would remain no scope of charge sheet. So, until your leave is sanctioned formally by the competent authority, charge sheet can be issued any time treating the period of application as unauthorised absence.
Better convince the authority to approve and sanction your pending leave.
Guest
(Querist) 23 November 2014
Thank you sir
Guest
(Expert) 23 November 2014
You are welcome.
R.K Nanda
(Expert) 23 November 2014
agree with DhingraG.
Guest
(Expert) 23 November 2014
Nanda ji,
Thanks for agreeing with my views.
Guest
(Expert) 23 November 2014
Rjendra ji,
Thanks to you also for agreeing with my views.
Guest
(Querist) 23 November 2014
Not disagreeing that authority can give charge-sheet in such case. Just one thing to mention Sir. I recall that, some days back I read a CAT judgement in Swamy news (around 2011, I feel, I have to search copy of judgement) that quashed a charge-sheet on the ground that leave application was still pending. It said that unless leave application is rejected charge-sheet can't be given. May be I am wrong, but if someone have seen this, kindly advise.
Guest
(Expert) 23 November 2014
Mr. Vinod,
Probably, you are trying to extend the thread unduly due to some serious misconception in your mind about law vis-a-vis Service Rules.
Suppose, I endorse your views and you are also able to trace the related issue of the Swamy News, would you be able to get your leave sanctioned administratively from the competent authority?
You must know that any court/CAT judgment is meant to be applied in the specific case of that very person in whose favour the judgment is given. That has no universal application on cases of all other persons, unless some other court takes congnizance about that in view of similarity of characteristics, circumstances and several other issues f the case, OR directs so through the Ministry of Home/DOPT that too after the DOPT issues Government of India decision to that effect.
Guest
(Querist) 23 November 2014
Yes sir. Thanks
Guest
(Expert) 23 November 2014
You are welcome.
Guest
(Querist) 23 November 2014
Sorry Sir, Just one question suddenly came to mind.
After CAT judgement, is it required on competent authority's part, that pending leave application be rejected prior to disciplinary proceeding?
I mean this may create embarrassment otherwise also, if disciplinary authority initiate proceeding and leave sanctioning authority later sanctions the leave (in case both are different).
Thanks
Guest
(Expert) 23 November 2014
Irrelevant and vague query! So, no further comments, except that for your satisfaction, you may better undertake the test by filing a case in the CAT to see the results. Otherwise, there can be no end of resultant hypothetical questions from you and others also, unless you gain practical experience by getting verdict in your own case. However, to be frank, if you have the desire to get answers to any number of your hypothetical questions for your academic knowledge, you should also be ready to pay my professional fee on per question basis. In that case, you may send as many number of questions as you like for reply at our email ID: dcgroup1962@gmail.com
V R SHROFF
(Expert) 23 November 2014
Agree with the expert PS Dhingra ji.
absent [ unauthorised leave] lead to charge sheet & dismissal too.
Guest
(Expert) 23 November 2014
Shroff ji,
Thanks for agreeing with me.
Guest
(Querist) 23 November 2014
Thanks Dhingra Sir for answering my queries so patiently.
But, So many times you levelled my queries as hypothetical and for general knowledge purpose that puzzled me.
Just for your kind information I have neither asked any hypothetical question nor for enhancing my knowledge.
I am not a lawyer to benefit from increasing knowledge by hypothetical questions, nor I have so much free time to waste others time. Why a person with problem will indulge himself in such a luxury? I had some issues. But Thanks for your advise, I would go for lawyer for my problems. Thanks.
Guest
(Expert) 23 November 2014
Mr. Vinod Kumar,
With reference to your statement, "So many times you levelled my queries as hypothetical and for general knowledge purpose that puzzled me" I may simply ask you, when any event does not happen and a question is asked on mere presumption basis or even without any such problem having arisen, what should any one think about the query about such baseless unhappened event?
For example, see your own last query, "After CAT judgement, is it required on competent authority's part, that pending leave application be rejected prior to disciplinary proceeding?
I mean this may create embarrassment otherwise also, if disciplinary authority initiate proceeding and leave sanctioning authority later sanctions the leave (in case both are different)."
Is not that a hypothetical question when any ground has not arisen to that effect?
Mr. Vinod, frankly speaking, your problem is to treat your own perceptions correct even before the prescribed rules, regulations and procedures and even if someone replies based on his vast experience.
I can now very well guess why discretion would have been used in negatrive sense by the competent authority in refusing you leave and treating you on unauthorised absence with the result of issue of charge sheet, as you must have picked up unnecessary arguments with that authority. Otherwise, in all probability, he would have sanctioned you leave and you would not have been made to suffer.
Nobody can become perfect based on his half baked knowledge to pick up argument with anyone and every one.
So, only CAT judgment may suit you on filing your case.
I can only express my best wishes for you.
Sudhir Kumar, Advocate
(Expert) 24 November 2014
I agree with all the four replies given by Mr Dhingra.
each time he is giving you the views you are coming with one irrelevant question.
Sudhir Kumar, Advocate
(Expert) 24 November 2014
You said
"After CAT judgement, is it required on competent authority's part, that pending leave application be rejected prior to disciplinary proceeding?"
You actually want this forum to advise you on the applicability of a judgement whose details are not even know to you. The experts on this forum do not walk on such ropes.
Such query has to be treated as vague and hypothetical.
1. HAVE YOU READ A COPY OF THE WHOLE JUDGEMENT (not extract in Swamy's News).
2.HAVE YOU GOT A COPY OF THE JUDGEMENT FROM CAT?
3.HAVE YOU CHECKED FROM ANY LAWYER WHETHER THE SAID JUDGEMENT FITS IN YOUR CASE?
4. DOES THAT JUDGEMENT COMPEL YOUR BOSS TO SANCTION LEAVE?
5. HAVE YOU CHECKED WHETHER THE JUDGEMENT HAS BEEN CHALLENGED/REVERSED/ UPHELD BY HIGH COURT AND LATER BY SUPREME COURT.
6. HAVE YOU CHECKED WHETHER NO APPEAL AGAINST THIS CAT JUDGEMENT BEEN FILED BY THE RESPONDENTS WITHIN APPELLATE PERIOD.
7. HAVE YOU SERVED ATTESTED COPY OF THE JUDGMENT TO YOUR BOSS.
Sudhir Kumar, Advocate
(Expert) 24 November 2014
another query at
http://www.lawyersclubindia.com/experts/Can-leave-be-denied-without-proper-ground--509141.asp
Guest
(Expert) 24 November 2014
Please don't mind, what I refrained to say erlier, I can say now for more clarity to make you understand what is in store for you in this particular case that I can guess what can be the fate of your departmental inquiry case, irrespective of how strong your defence can be. Your leave cum departmental inquiry case can bounce upon you, not on account of bias or prejudice of the competent authority, but on account of strong official ground of your absence on "pendency of approval" as compared to your very week and vague plea of "pendency of leave". The cause of pendency of leave had already faded away the day you happened to absent yourself without necessary approval of the competent authority. That has already taken the shape of unauthorised absence by not caring for the need of approval of the competent authority.
For that you cannot blame anyone else, except yourself only, may be on account of your persisting and inflexible arguments with your superiors. Even the weakest and the authority of the department does not like his subordinate to discard his authority and vested powers. I hope you can also not tolerate any insubordination and indiscipline of your own subordinates by ignoring your authority, if you hold some position in the organization.
Anyway, my best wishes are with you.
Guest
(Expert) 24 November 2014
I hope you won't try to make fun of your case to get that spoiled to the maximum extent with any more vague plea.
