Telangana High Court
Dr. Duraisamy Baskaran, ... vs Chairman Md, M/S.Gailindia Ltd., ... on 16 March, 2021
Bench: Abhinand Kumar Shavili
HIGH COURT FOR THE STATE OF TELANGANA :: HYDERABAD
***
W.P.No.26030 of 2017
Between:
Dr.Duraisamy Baskaran
.........Petitioner
and
M/s. GAIL (India) Limited, 16, Bhikaji Cama Place,
RK Puram, New Delhi - 110006, rep. by its Chairman and Managing Director.
and others.
.......Respondent
Date of Judgment pronounced on : 16-03-2021
HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
1. Whether Reporters of Local newspapers : Yes
May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes
to Law Reporters/Journals:
3. Whether The Lordship wishes to see the fair copy : Yes
Of the Judgment?
2 AKS,J
W.P.No.26030 of 2017
HIGH COURT FOR THE STATE OF TELANGANA :: HYDERABAD
***
W.P.No.26030 of 2017
%16-03-2021
# Dr.Duraisamy Baskaran .... Petitioner
Versus
$ M/s. GAIL (India) Limited, 16, Bhikaji Cama Place,
RK Puram, New Delhi - 110006, rep. by its Chairman and Managing Director.
and others.
..... Respondents.
< GIST:
> HEAD NOTE:
!Senior Counsel for the petitioner : Sri Deepak Bhattacharjee
representing Sri S.Lakshmikanth
^ Senior Counsel for Respondents : Sri D.V.Seetharam Murthy,
representing Sri S.Sreenivasa Rao
? Cases referred
1
(2020) 12 S.C.C. 426 = Civil Appeal No.777 of 2020 dt.28-01-2020
2
(2013) 14 S.C.C. 32
3
(2013) 1 S.C.C. 297
3 AKS,J
W.P.No.26030 of 2017
HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
W.P.No.26030 of 2017
ORDER:
This Writ Petition is filed seeking a Writ of Mandamus
declaring the suspension order dt.06-07-2016 issued by the
Disciplinary Authority, report dt.20-01-2017 of the Internal
Complaint Committee (ICC), Memo dt.30-01-2017 of the
Disciplinary Authority, order of removal dt.24-03-2017 of the
Disciplinary Authority, order dt.29-06-2017 confirming the order of
the Disciplinary Authority and also order dt.17-05-2017 of the
Executive Director HR forfeiting the gratuity, as arbitrary, illegal and
contrary to the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013 (for brevity 'the
Act, 2013), Government of India OM No.11013/2/2014EsttAIII dt.16-
07-2015, Guidelines on Sexual Harassment of Women at Work Place
dt.04-05-2016 issued by the respondent Organization and also against
the GAIL Employees' CDA Rules 1986, and set aside the same.
2. Heard Sri Deepak Bhattacharjee, learned Senior Counsel,
representing Sri S.Lakshmikanth, learned counsel for the petitioner
and Sri D.V.Seetharam Murthy, learned Senior Counsel, representing
Sri S.Sreenivasa Rao, learned counsel for the respondents.
3. It has been contended by the petitioner that initially he
was appointed in the respondents-Corporation on 31-07-1995 as
Deputy Manager (P&A) at Hazira, Surat and he has been discharging
4 AKS,J
W.P.No.26030 of 2017
his duties to the best satisfaction of his superiors and everyone
concerned. After rendering considerable length of service, the
petitioner was promoted as Manager (HR) on 01-07-1999 and the
petitioner was further promoted as Senior Manager (HR) on
01-04-2005. Thereafter, the petitioner was further promoted as Chief
Manager (HR) during April 2010. The petitioner was actually entitled
for promotion to E-6 Grade from 01-04-2009 but the respondents have
not considered his case. Then challenging the action of the
respondents in not considering his case for promotion to the E-6
Grade, the petitioner filed W.P.No.28699 of 2011 before the High
Court of Madras, Chennai and the same is pending.
4. The petitioner has been transferred to various places and
since he has raised the issue of corruption and illegalities in the
Corporation, the respondents had a grudge against him and so he was
subjected to series of transfers to Alibagh, Rajahmundry, Bangalore,
Kochi, Bangalore, Ghandar and Pondicherry and finally, he was
transferred to the Zonal Office, Hyderabad on 29-02-2016 as Chief
Manager (HR) and the respondents have falsely implicated him in a
sexual harassment case alleged to have been committed by the
petitioner on the contract female workers working at Hyderabad. The
case was referred to the Internal Complaints Committee (hereinafter
referred to as 'ICC') as established under the Act, 2013.
5. The ICC undertook the preliminary enquiry on the basis
of four complaints dt.29-05-2016, 02-06-2016, 08-06-2016 and
5 AKS,J
W.P.No.26030 of 2017
10-06-2016 and the report of the preliminary investigation conducted
by the ICC was submitted to the disciplinary authority on 20-01-2017
with a finding that some of the allegations levelled against the
petitioner were proved and in respect of some allegations, it was held
as not proved. Even before the ICC would submit its report, the
petitioner was placed under suspension vide proceedings
dt.06-07-2016 under Rule 25 of the GAIL Employees' (CDA) Rules,
1986. Thereafter, the ICC report was communicated to the petitioner
on 02-02-2017 so as to enable the petitioner to submit his objections
by 15-02-2017 and personal hearing was fixed on 17-02-2017.
6. The petitioner has submitted his objections to the said
ICC report on 22-02-2017 and the petitioner has also attended the
personal hearing extended by the respondents on 27-02-2017. The
petitioner has reiterated his defence saying that he is not responsible
for any of the allegations levelled against him and contended that he
was falsely implicated in the sexual harassment case as a counter
blast, as on the earlier occasion, he has raised corruption allegations
against his superiors and also maladministration in the organization.
7. The petitioner has further contended that thereafter, the
disciplinary authority has not initiated any disciplinary proceedings
against the petitioner in accordance with Regulation 30 of the GAIL
Employees (Conduct, Disciplined and Appeal) Rules, 1986 (for
brevity 'Rules, 1986'), which reads as follows:
6 AKS,J
W.P.No.26030 of 2017
"RULE - 30: PROCEDURE FOR IMPOSING MAJOR
PENALTIES::
1) No order imposing any of the major penalties specified in
Clause - (e), (ee), (f) and (g) of Rule 28 shall be made except after
an enquiry is held in accordance with this Rule.
2) Whenever the Disciplinary Authority is of the opinion that there
are grounds for inquiring into the truth of any imputation of any
misconduct or misbehavior against an employee, it may itself
inquire into, or appoint any serving or retired officers/ Directors
of the Company; or any serving or retired public servant; or any
serving or retired person including Director of the Public Sector
Companies or of the Government/ Semi- Government/ Quasi-
Government or a lawyer/ counsel or a Consultant (hereinafter
called the Inquiring Authority) to inquire into the truth thereof.
[No. Co/HR/Pol/P-11, dated 21.3.2002]
3) Where it is proposed to hold an inquiry, the Disciplinary
Authority shall frame definite charges on the basis of the
allegations against the employee. The charges, together with a
statement of the allegations, on which they are based, a list of
documents by which and a list of witnesses by whom, the articles of
charge are proposed to be sustained, shall be communicated in
writing to the employee, who shall be required to submit within
such time as may be specified by the Disciplinary Authority (not
exceeding 15 days) a written statement whether he admits or
denies any of or all the Articles of Charge.
Explanation
(Modified: 301st Meeting of the Board of Directors held on
18-08-2012, Item No.6)
4) On receipt of the written statement of the employee, or if no
such statement is received within the time specified, an enquiry
may be held by the Disciplinary Authority itself, or by any other
person appointed as an Inquiring Authority under sub clause (2).
7 AKS,J
W.P.No.26030 of 2017
Provided that it may not be necessary to hold an inquiry in respect
of the charges admitted by the employee in his written statement.
The Disciplinary Authority shall, however, record its findings on
each such charge. [No. Co/HR/Pol/P-11, dated 21.3.2002]
5) Where the Disciplinary Authority itself inquires or appoints
an inquiring Authority for holding an enquiry, it may, by an
order appoint an employee of the Company or a nominee of
CBI (only in respect of cases investigated by CBI) to be known as
the "Presenting Officer" to present on its behalf the case in
support of the articles of charge. [No. Co/HR/Pol/P-11, dated
21.3.2002]
6) The employee may take the assistance of any employee of
the Company or any other Public Servant. (only in respect of
cases where the Presenting Officer appointed is a nominee of
CBI) to present the case on his behalf, but may not engage a legal
practitioner for the purpose unless the "Presenting Officer"
appointed by the Disciplinary Authority is a legal practitioner or
the Disciplinary Authority, having regard to the circumstances of
the cases, so permits, provided that an employee shall not take the
assistance of any employee of the Company or any other public
servant (only in respect of cases where the presenting officer
appointed is a nominee of CBI) who has already two pending
Disciplinary cases in hand in which he is to function as Defence
Assistant. [No. Co/HR/Pol/P-11, dated 21.3.2002]
7) On the date fixed by the Enquiring Authority, the
employee shall appear before the Inquiring Authority at the
time, place and date specified in the notice. The Inquiring
Authority shall ask the employee whether he pleads guilty or has
any defense to make and if he pleads guilty to any of the articles of
charge, the Inquiring Authority shall record the plea, sign the
record and obtain the signature of the employee concerned
thereon. The Inquiring Authority shall return a finding of guilt in
respect of those articles of charge to which the employee
concerned pleads guilty.
8) If the employee does not plead guilty, the Inquiring Authority
shall adjourn the case to a later date not exceeding thirty days,
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after recording an order that the employee may, for the
purpose of preparing his defense:
i) inspect the documents listed with the charge-sheet;
ii) Submit a list of additional documents and witnesses that he
wants to examine; and
iii) be supplied with the copies of the statements of witnesses, if
any listed in the charge-sheet;
Note:
Relevance of the additional document and the witnesses referred to
in sub-clause 8 (ii) above will have to be given by the
employee concerned and the documents and the witnesses shall
be summoned if the Inquiring Authority is satisfied about their
relevance to the charges under inquiry.
9) The Inquiring Authority shall ask the authority in whose
custody or possession the documents are kept, for the production
of the documents on such date as may be specified.
10) The authority in whose custody or possession the requisitioned
documents are shall arrange to produce the same before the
Inquiring Authority on the date, place and time specified in
the requisition notice.
Provided that the authority having the custody or possession of the
requisitioned documents may claim privilege if the production of
such documents will be against the public interest or the interest of
the Corporation/Company. In that event, it shall inform the
Inquiring Authority accordingly.
11) On the date fixed for the enquiry, the oral and documentary
evidence by which other articles of charges are proposed to be
proved shall be produced by or on behalf of the Disciplinary
Authority. The witnesses shall be examined by or on behalf of the
Presenting Officer and may be cross examined by or on behalf of
the employee. The Presenting Officer shall be entitled to re-
examine the witnesses on any points on which they have been
cross-examined, but not on a new matter, without the leave of the
9 AKS,J
W.P.No.26030 of 2017
Inquiring Authority. The Inquiring Authority may also put such
questions to the witnesses as it thinks fit.
12) Before the close of the prosecution case, the Inquiring
Authority may, in its discretion, allow the Presenting Officer to
produce evidence not included in the charge-sheet or may
itself call for new evidence or recall or re-examine any witness.
In such case, the employee shall be given opportunity to inspect the
documentary evidence before it is taken on record; or to cross-
examine a witness, who has been so summoned.
13) When the case for the Disciplinary Authority is closed, the
employee may be required to state his defense, orally or in writing,
as he may prefer. If the defense is made orally, it shall be recorded
and the employee shall be required to sign the record. In either
case a copy of the statement of defense shall be given to the
Presenting Officer, if any appointed.
14) The evidence on behalf of the employee shall then be
produced. The employee may examine himself in his own behalf if
he so prefers. The witnesses produced by the employee shall then
be examined and shall be liable to cross- examination, re-
examination and examination by Inquiring Authority according
to the provision to the witnesses for the Disciplinary authority.
15) The Inquiring Authority may, after the employee closes his
case, and shall, if the employee has not examined himself,
generally question him on the circumstances appearing
against him in the evidence for the purpose of enabling him
to explain any circumstances appearing in the evidence
against him.
16) After the completion of the production of the evidence, the
employee and the Presenting Officer may file written briefs of
their respective cases within 15 days of the date of
completion of the production of evidence, with a copy to the
charged employee and thereafter, the charged employee may file
his written brief within 15 days to the Inquiring Authority only.
17) If the employee does not submit the written statement of
defence referred to in sub-rule (3) on or before the date specified
10 AKS,J
W.P.No.26030 of 2017
for the purpose or does not appear in person, or through the
assisting officer or otherwise fails or refuses to comply with
any of the provisions of these Rules, the Inquiring Authority
may hold the enquiry ex-parte.
Whenever any Inquiring Authority, after having heard and
recorded the whole or any part of the evidence in an inquiry,
ceases to exercise jurisdiction therein, and is succeeded by any
other Inquiring Authority which has, and which exercises, such
jurisdiction, the Inquiring Authority so succeeding may act on
the evidence so recorded by its predecessor, or partly
recorded by its predecessor and partly recorded by itself.
Provided that if the succeeding Inquiring Authority is of the
opinion that further examination of any of the witnesses whose
evidence has already been recorded is necessary in the interest of
justice, it may recall, examine, cross-examine and re-examine any
such witnesses as hereinbefore provided.
18) i) After the conclusion of the enquiry, report shall be prepared
and it shall contain:
a) an introductory paragraph in which references to the orders of
appointment of IA and PO land engagement of Defense Assistance
will be made;
b) brief account of hearing, marking of exhibits, recording of
evidence;
c) Reproduction of articles of charge (s);
d) Indication about charges which are dropped, or admitted, or
have been inquired into;
e) Brief statement of the case of the Disciplinary Authority in
respect of the charges inquired into;
f) Brief statement of the case of the charged officer;
g) For each charge inquired into-
i) the case in support of the charge;
11 AKS,J
W.P.No.26030 of 2017
ii) the case of defence;
iii) assessment of evidence; and
iv) the findings on each article of charge and the reasons
therefore,
h) A brief summary of the findings,
(Modified: 301st Meeting of the Board of Directors held on
18-08-2012, Item No.6)
Explanation If in the opinion of the Inquiring Authority the
proceedings of the enquiry establish any article of charge
different from the original articles of the charges, it may record its
findings on such articles of charge.
Provided that the findings on such article of charge shall not
be recorded unless the employee has either admitted the facts
on which such article of charge is based or has had a
reasonable opportunity of defending himself against such article of
charge.
18) ii) The Inquiring Authority, where it is not itself the
Disciplinary Authority, shall forward to the Disciplinary Authority
the records of enquiry which shall include:
a) the report of the enquiry prepared by it under sub-clause (i)
above;
b) List of exhibits produced by the presenting officer;
c) List of exhibits produced by the charged officer, if any;
d) List of prosecution witness;
e) List of defence witnesses, if any;
f) A folder containing deposition of witness in the order in which
they were examined;
g) A folder containing daily order sheets;
12 AKS,J
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h) A folder containing the written statement of defence, if any
submitted the employee referred to in sub rule (13);
i) Written briefs of both sides as referred to in sub rule (16), if any;
and
j) Correspondence folder."
8. A charge memo was issued to the petitioner in
accordance with Regulation 30 of the Rules, 1986 and straight away,
major penalty of removal from service was imposed on the petitioner.
Aggrieved by the said order, the petitioner has preferred appeal to the
appellate authority. The appeal preferred by the petitioner was
considered by the appellate authority and the same was rejected
upholding the punishment imposed by the disciplinary authority vide
orders dt.29-06-2017. Challenging the same, the present Writ Petition
is filed.
9. Learned counsel for the petitioner had contended that
when Regulations contemplate that for imposing any major penalty, a
standard procedure has to be followed in accordance with Regulation
30 of the Rules, 1986, but no disciplinary proceedings were initiated
and straight away, a major penalty was imposed. He further
contended that without initiating disciplinary proceedings, the
respondents could not have imposed a major penalty of removal. If
any regular departmental enquiry was conducted, the petitioner could
get an opportunity to submit his explanation. The ICC report was
treated as a final report and based upon the ICC report, the petitioner
was removed from service without following the Regulations. He
13 AKS,J
W.P.No.26030 of 2017
further contended that the Act, 2013 has come into force from 2013
onwards and the Central Government i.e. Ministry/Department and
Organizations has framed guidelines as to how the sexual harassment
cases have to be dealt with at work places and accordingly, the GAIL
authorities have also issued elaborate guidelines pursuant to the above
Act, 2013 and the service rules were also amended accordingly.
10. Learned counsel for the petitioner had further contended
that the petitioner has filed those guidelines for sexual harassment
cases as to how they have to be dealt with, issued by the GAIL
authorities and those guidelines were annexed to the copy of the Writ
Petition at page No.212 and guideline No.8 deals with the enquiry
report and as per guideline No.8, the ICC cannot recommend the
penalty for misconduct. ICC shall only recommend whether charges
have been proved or partially proved or not proved. Thereafter, the
ICC may recommend to take action against the complainant in
accordance with Rules, 1986, if the allegations against the employee
are malicious, or the complainant knows it to be false, or has produced
any forged or misleading document. Thereafter, the disciplinary
authority had to initiate disciplinary proceedings for imposing any
penalty in accordance with Regulation 30 of the Rules, 1986.
11. Learned counsel for the petitioner pointed out to a chart
which was annexed to the guidelines framed by the GAIL wherein it
categorically states that after enquiry report is submitted by the ICC,
the disciplinary authority may act as per Section 11 of the Act, 2013
14 AKS,J
W.P.No.26030 of 2017
and also follow Rule 30 of the Rules, 1986. He further contended that
since no disciplinary proceedings were initiated against the petitioner
in accordance with Regulation 30, major penalty of removal ought not
to have been imposed on the petitioner. The disciplinary authority
ought to have initiated disciplinary proceedings against the petitioner
and after giving opportunity to the petitioner in the regular
departmental enquiry, and if the charges are proved in the
departmental enquiry, the disciplinary authority can impose any
punishment. But without following the procedure, the respondents
ought not to have imposed a punishment of removal. Therefore, the
impugned orders dt.24-03-2017 as confirmed by the appellate
authority on 29-06-2017 are liable to be set aside and let the matter be
remanded to the disciplinary authority for initiating disciplinary
proceedings in accordance with Regulation 30 of the Rules, 1986.
12. He further contended that in a similar issue fell for
consideration before the Supreme Court in Dr.Vijayakumaran CPV
v. Central University of Kerala and others1, the appellant therein
was terminated based on the report of ICC and the Supreme Court has
held as under:
"10. In Pavanendra Narayan Verma v. Sanjay Gandhi
PGI of Medical Sciences, the Court observed thus:
"21. One of the judicially evolved tests to determine
whether in substance an order of termination is punitive is to see
whether prior to the termination there was (a) a full-scale formal
(2020) 12 S.C.C. 426 = Civil Appeal No.777 of 2020 dt.28-01-2020
15 AKS,J
W.P.No.26030 of 2017
enquiry (b) into allegations involving moral turpitude or
misconduct which (c) culminated in a finding of guilt. If all three
factors are present the termination has been held to be punitive
irrespective of the form of the termination order. Conversely if
any one of the three factors is missing, the termination has been
upheld."
11. In the present case, all the three elements are
attracted, as a result of which it must follow that the stated order
is ex facie stigmatic and punitive. Such an order could be issued
only after subjecting the incumbent to a regular inquiry as per
the service rules. As a matter of fact, the Internal Complaints
Committee had recommended to proceed against the appellant
appropriately but the Executive Council proceeded under the
mistaken belief that in terms of Clause 7 of the contract, it was
open to the Executive Council to terminate the services of the
appellant without a formal regular inquiry as per the service
rules. Indisputably, in the present case, the Internal Complaints
Committee was constituted in reference to the complaints
received from the girl students about the alleged misconduct
committed by the appellant, which allegations were duly inquired
into in a formal inquiry after giving opportunity to the appellant
and culminated with the report recording finding against the
appellant with recommendation to proceed against him.
12. Upon receipt of complaints from aggrieved women
(girl students of the University) about the sexual harassment at
workplace (in this case, University campus), it was obligatory on
the Administration to refer such complaints to the Internal
Committee or the Local Committee, within the stipulated time
period as predicated in Section 9 of the Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal)
Act, 2013 (for short "the 2013 Act"). Upon receipt of such
complaint, an inquiry is required to be undertaken by the
Internal Committee or the Local Committee in conformity with
the stipulations in Section 11 of the 2013 Act. The procedure for
conducting such inquiry has also been amplified in the 2015
Regulations. Thus understood, it necessarily follows that the
inquiry is a formal inquiry required to be undertaken in terms of
16 AKS,J
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the 2015 Regulations. The allegations to be inquired into by such
Committee being of "sexual harassment" defined in Section 2(n)
read with Section 3 of the 2013 Act and being a serious matter
bordering on criminality, it would certainly not be advisable to
confer the benefit on such employee by merely passing a simple
order of termination. Such complaints ought to be taken to its
logical end by not only initiating departmental or regular inquiry
as per the service rules, but also followed by the other actions as
per law. In such cases, a regular inquiry or departmental action
as per service rules is also indispensable so as to enable the
employee concerned to vindicate his position and establish his
innocence. We say no more."
13. Learned counsel for the petitioner had further contended
that in that case, it was adjudicated by the Supreme Court that the
appellant therein was only a temporary employee and the Supreme
Court has set aside the orders of termination and directed for
conducting regular departmental enquiry. Here, the petitioner stands
on a better footing because the petitioner is a regular employee and
based upon the above judgment contends that the respondents ought
not have removed the petitioner from service without initiating any
disciplinary proceedings.
14. He has further relied upon the judgment rendered by the
Supreme Court reported in Bhajan Singh v. State of Uttarakhand
and others2, wherein the Supreme Court has held as under:
"11. Various affidavits were filed on behalf of the
respondents in the High Court:
11.1. One Shri S. Raju s/o Shri S. Subbiah affirmed two
affidavits on 26-6-2012. One affidavit he affirmed in his capacity
(2013) 14 S.C.C. 32
17 AKS,J
W.P.No.26030 of 2017
as Principal Secretary, Department of Peyjal, on behalf of
Respondent 1 Government of Uttarakhand. In Para 17 thereof he
stated as follows:
"17. That perusal of the letters dated 5-12-2011, 3-3-2012
and 9-4-2012 do not mention that these letters have been issued, or
the alleged charge-sheets with these letters have been issued,
under any disciplinary proceedings. These letters do not also
mention that prior to issuance of these letters at any point of time
an explanation from Respondent 4 was called for or any order of
initiating disciplinary proceeding was issued, as such the Principal
Secretary or the Government on receiving the proposal came to the
conclusion that the said letters/alleged charge-sheets cannot be
deemed to have initiated any disciplinary proceeding against
Respondent 4 and accordingly the same was not mentioned in the
note before the Selection Committee."
The officer has sought to contend that these charge-sheets
do not mention that they have been issued under any disciplinary
proceedings. By stating so he has betrayed his ignorance of the
legal position that the disciplinary proceedings begin with the
issuance of the charge-sheet. He has further stated that prior to
issuance of the charge-sheets no explanation was called from
Respondent 4, nor any order of initiating disciplinary proceedings
was issued. Now, this is a matter of the procedure to be followed
by the authority concerned while initiating the disciplinary
proceeding. In a given case a show-cause notice may be issued,
prior to the issuance of the charge-sheets, but that is not the rule.
In any case, it is the Principal Secretary of the Department who in
his capacity as the Chairman of the Nigam was the disciplinary
authority. He has countersigned on the charge-sheet. The affidavit
is a miserable attempt to explain as to why the charge-sheets were
not mentioned in the note placed before the Selection Committee
by the then Secretary of the Department.
11.2. In another affidavit affirmed by Shri Raju on the same
day in his capacity as the Chairman of the Nigam, he stated in
Para 4 thereof that he had joined the duties on the present post on
1-5-2012, and his predecessor-in-office at the relevant point of
18 AKS,J
W.P.No.26030 of 2017
time, was one Mr Utpal Kumar Singh, IAS. In Para 5 of this
affidavit he stated that he had gone through the file concerned and
upon perusal of the files it appeared to him that the three draft
charge-sheets were prepared. He has further stated that the three
draft charge-sheets were sent to the then Chairman for approval
by the petitioner, and the then Chairman had approved the same
and sent it with his covering letter to Respondent 4 for calling his
explanation before initiation of any disciplinary proceeding in the
matter. In Para 9 he specifically stated amongst others as follows:
"9. ... The said charge-sheets appear to have been
approved and sent by the then Chairman to Respondent 4 for
calling his explanation before commencing any disciplinary
proceedings in the matters. No enquiry officer has been appointed
in the matter till now."
Thus, in so many words, while explaining his own position,
he has contradicted the previous Secretary through this affidavit.
On reading these two affidavits one thing is very clear that charge-
sheets were approved by the then Chairman and thereafter sent to
Respondent 4 calling for his explanation, though for the reasons
best known to the Nigam the disciplinary proceedings have not
proceeded thereafter.
11.3. As far as Respondent 4 is concerned Shri Raju
affirmed an affidavit-in-reply and amongst others gave an
explanation on the allegations contained in the three charge-
sheets. He has however not denied having received these charge-
sheets. He has also not stated that he has filed any reply to these
charge-sheets."
15. Learned counsel for the petitioner had contended that the
disciplinary proceedings would have been initiated only from the date
of issuance of charge sheet. In the instant case, since no charge memo
was issued to the petitioner, the question of initiation of disciplinary
action against the petitioner would not arise and since no disciplinary
19 AKS,J
W.P.No.26030 of 2017
proceedings were initiated, the petitioner could not have been imposed
with a major penalty of removal.
16. Learned counsel for the respondents had contended that a
regular enquiry was conducted and every opportunity was given to the
petitioner in the enquiry conducted by the ICC and the petitioner was
allowed to cross examine the witnesses. The entire principles of
natural justice were extended and the ICC report would itself be
treated as enquiry report under disciplinary proceedings and to
strengthen his argument, the learned counsel for the respondents had
relied upon the judgment of the Supreme Court in Medha Kotwal
Lele and others v. Union of India and others3., wherein, it was held
as under:
"44. In what we have discussed above, we are of the
considered view that guidelines in Vishaka [Vishaka v. State of
Rajasthan, (1997) 6 SCC 241 : 1997 SCC (Cri) 932] should not
remain symbolic and the following further directions are necessary
until legislative enactment on the subject is in place:
44.1. The States and Union Territories which have not yet
carried out adequate and appropriate amendments in their
respective Civil Services Conduct Rules (by whatever name these
Rules are called) shall do so within two months from today by
providing that the report of the Complaints Committee shall be
deemed to be an inquiry report in a disciplinary action under such
Civil Services Conduct Rules. In other words, the disciplinary
authority shall treat the report/findings, etc. of the Complaints
Committee as the findings in a disciplinary inquiry against the
delinquent employee and shall act on such report accordingly. The
findings and the report of the Complaints Committee shall not be
treated as a mere preliminary investigation or inquiry leading to a
(2013) 1 S.C.C. 297
20 AKS,J
W.P.No.26030 of 2017
disciplinary action but shall be treated as a finding/report in an
inquiry into the misconduct of the delinquent.
44.2. The States and Union Territories which have not
carried out amendments in the Industrial Employment (Standing
Orders) Rules shall now carry out amendments on the same lines,
as noted above in para 44.1 within two months.
44.3. The States and Union Territories shall form adequate
number of Complaints Committees so as to ensure that they
function at taluka level, district level and State level. Those States
and/or Union Territories which have formed only one committee
for the entire State shall now form adequate number of Complaints
Committees within two months from today. Each of such
Complaints Committees shall be headed by a woman and as far as
possible in such committees an independent member shall be
associated.
44.4. The State functionaries and private and public sector
undertakings/organisations/bodies/institutions, etc. shall put in
place sufficient mechanism to ensure full implementation of
Vishaka [Vishaka v. State of Rajasthan, (1997) 6 SCC 241 : 1997
SCC (Cri) 932] guidelines and further provide that if the alleged
harasser is found guilty, the complainant victim is not forced to
work with/under such harasser and where appropriate and
possible the alleged harasser should be transferred. Further
provision should be made that harassment and intimidation of
witnesses and the complainants shall be met with severe
disciplinary action.
44.5. The Bar Council of India shall ensure that all Bar
Associations in the country and persons registered with the State
Bar Councils follow Vishaka [Vishaka v. State of Rajasthan,
(1997) 6 SCC 241 : 1997 SCC (Cri) 932] guidelines. Similarly, the
Medical Council of India, Council of Architecture, Institute of
Chartered Accountants, Institute of Company Secretaries and
other statutory institutes shall ensure that the organisations,
bodies, associations, institutions and persons registered/affiliated
with them follow the guidelines laid down by Vishaka [Vishaka v.
21 AKS,J
W.P.No.26030 of 2017
State of Rajasthan, (1997) 6 SCC 241 : 1997 SCC (Cri) 932] . To
achieve this, necessary instructions/circulars shall be issued by all
the statutory bodies such as the Bar Council of India, Medical
Council of India, Council of Architecture, Institute of Company
Secretaries within two months from today. On receipt of any
complaint of sexual harassment at any of the places referred to
above the same shall be dealt with by the statutory bodies in
accordance with Vishaka [Vishaka v. State of Rajasthan, (1997) 6
SCC 241 : 1997 SCC (Cri) 932] guidelines and the guidelines in
the present order."
17. He further contended that the Supreme Court held that
the disciplinary authority shall treat the report/findings etc. of the
Complaints Committee as the findings in a disciplinary inquiry
against the delinquent employee and shall act on such report
accordingly. The findings and the report of the Complaints
Committee shall not be treated as a mere preliminary investigation or
inquiry leading to a disciplinary action but shall be treated as a
finding/report in an inquiry into the misconduct of the delinquent.
18. Since a regular enquiry was conducted by the ICC, no
disciplinary enquiry is necessary and based upon ICC enquiry
officer's report, the respondents have rightly removed the petitioner
from service. Therefore, there are no merits in the Writ Petition and
the same is liable to be dismissed.
19. This Court, having heard the rival submissions made by
both parties, is of the considered view that the petitioner was placed
under suspension on 06-07-2016 in exercise of the powers conferred
under Regulation 25 of the Rules, 1986 and the case of the petitioner
22 AKS,J
W.P.No.26030 of 2017
was referred to ICC to conduct enquiry and thereafter, the disciplinary
authority is bound to follow Regulation 30 of the Rules, 1986 and
initiate disciplinary proceedings against the petitioner. The guidelines
were framed by the Ministry, Department of Personnel and Trainee.
It has categorically held that elaborate guidelines were issued to all
the establishments and the GAIL has also adopted the said guidelines
and after promulgation of the Act, 2013, the GAIL has also amended
the regulations and the amended regulations of GAIL categorically
contemplate to initiation of action under Section 11 of the Act, 2013
as well as initiation of the proceedings under Regulation 30 of the
Rules, 1986 and even while communicating the ICC enquiry report to
the petitioner, the disciplinary authority has communicated the said
enquiry report in accordance with Regulation 31 (a) of the Rules,
1986. Though in some portion of actions, the respondents have
followed the Rules, 1986, but while removing the petitioner from
service, the respondents have not initiated the disciplinary
proceedings against the petitioner in accordance with Regulation 30 of
the Rules, 1986.
20. Therefore, this Court is of the considered view that
imposing a major penalty of removal from service on the petitioner is
contrary to Regulation 30 of the Rules, 1986. In respect of contention
of the respondents with regard to the judgment in Medha Kotwal
Lele (3 supra) is concerned, at para No.44 (1) therein, it is stated that
the States and Union Territories which have not yet carried out
23 AKS,J
W.P.No.26030 of 2017
adequate and appropriate amendments in their respective Civil Service
Conduct Rules (by whatever name these Rules are called) shall do so
within two months from today by providing that the report of the
Complaints Committee shall be deemed to be an inquiry report in a
disciplinary action under such Civil Services Conduct Rules. In other
words, the disciplinary authority shall treat the reports/findings etc. of
the Complaints Committee as the findings in a disciplinary inquiry
against the delinquent employee and shall act on such report
accordingly. The findings and the reports of the Complaints
Committee shall not be treated as a mere preliminary investigation or
inquiry leading to a disciplinary action but shall be treated as a
finding/report in an inquiry into the misconduct of the delinquent.
21. This judgment was delivered by the Supreme Court prior
to enactment of the Act, 2013 and after the enactment, the respondents
have amended the regulation in 2015 and the Supreme Court had
considered the issue in Dr.Vijayakumaran CPV (1 supra) and set
aside the orders of termination as the said termination orders were
passed based on ICC report and the Supreme Court held that without
conducting the regular departmental enquiry, the respondent-
University therein could not have imposed punishment of termination
as the said termination of the petitioner therein was without subjecting
the petitioner to a regular inquiry and without giving any opportunity
as per the service rules.
24 AKS,J
W.P.No.26030 of 2017
22. In the instant case, petitioner was a regular employee and
stands on a better footing, but straight away, he was removed from
service without initiating any disciplinary proceedings which is
contrary to the Regulations. Regulation 30 is in the nature of
substantive law where the Regulation 30 mandates that no order of
imposing any of the major penalties specified in Regulation 28 shall
be made, without holding enquiry in accordance with this Rule. So,
Regulation 30 is a substantive law in nature and is not a procedural
aspect. When the procedure of law complied or not complied, then
the concept of the prejudice might have caused to the petitioner would
arise. But here, the respondents have violated the substantive
requirement of Regulation 30 which makes it clear that no orders
imposing any major penalty can be imposed against any employee
without conducting an enquiry in accordance with Regulation 30
which mandates that initiation of disciplinary proceedings is a
mandatory requirement and without conducting any enquiry, no
employee can be imposed any major penalties as contemplated under
Regulation 30.
23. The reliance placed by the learned counsel for the
respondents in respect of the judgment delivered by the Supreme
Court in Medha Kotwal Lele (3 supra) is concerned, the judgment
also makes it clear that the ICC enquiry report would be treated as
enquiry report in a disciplinary proceedings. Now the issue is whether
the respondents have initiated disciplinary action against he petitioner
25 AKS,J
W.P.No.26030 of 2017
or not in accordance with Regulation 30 of the Rules, 1986. Had the
respondents initiated disciplinary action in accordance with
Regulation 30, then the ICC report could not have been treated as
enquiry report in disciplinary case. But in the instant case, the
respondents have not initiated any disciplinary proceedings against the
petitioner in accordance with Regulation 30 of the Rules, 1986 and in
the absence of the same, the question of treating ICC report as
disciplinary proceedings, would not arise.
24. Looking from any angle, the orders of removal passed on
24-03-2017 by the disciplinary authority and the proceedings
dt.29-06-2017 confirmed by the appellate authority are liable to be set
aside and accordingly they are set aside as the said proceedings were
issued by the respondents without initiating any disciplinary action
against the petitioner and accordingly the Writ Petition is allowed. It
is always open for the disciplinary authority to initiate disciplinary
proceedings against the petitioner in accordance with Regulation 30 of
the Rules, 1986 and pass appropriate orders in accordance with law.
No costs.
25. Miscellaneous petitions, if any, pending in this writ
petition, shall stand closed.
_____________________________________
JUSTICE ABHINAND KUMAR SHAVILI
Dt. 16 -03-2021
Note:-
L.R.Copy to be marked: Yes / No
B/o.
kvr
