In the matter of Duraisamy Baskaran v. GAIL (India) Limited and Ors., the Telangana High Court on 16th March 2021 set aside the orders of removal by the disciplinary authority and the proceedings confirmed by the appellate authority as the said proceedings were issued by the Respondents without initiating any disciplinary action against the Petitioner (Duraisamy Baskaran).
It has been contended by the petitioner that initially he was appointed in the respondents-Corporation as Deputy Manager. The petitioner was actually entitled for promotion to E-6 Grade from 01-04-2009 but the respondents did not consider his case. Then challenging this action of the respondents, the petitioner filed a Writ Petition before the High Court of Madras and the same is pending.
The Petitioner contended that 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 and the respondents have allegedly 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 (‘ICC’) as established under the Act, 2013.
The report of the preliminary investigation conducted by the ICC was submitted to the disciplinary authority 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 under Rule 25 of the GAIL Employees’ (CDA) Rules, 1986. Thereafter, the ICC report was communicated to the petitioner. The petitioner submitted his objections to the said ICC report and also attended the personal hearing extended by the respondents.
The petitioner 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. 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 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. Challenging the same, the present Writ Petition is filed.
The Court held that: –
- 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 as confirmed by the appellate authority were set aside and the matter was remanded to the disciplinary authority for initiating disciplinary proceedings in accordance with Regulation 30 of the Rules, 1986.
- 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 proceedings were initiated, the petitioner could not have been imposed with a major penalty of removal.
- The petitioner was placed under suspension in exercise of the powers conferred under Regulation 25 of the Rules, 1986 and the case of the petitioner 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 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.
- The Court was of the view that imposing a major penalty of removal from service on the petitioner is contrary to Regulation 30 of the Rules, 1986.
- 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.
- 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.
- 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.
- 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.
– Esha Shah, Paralegal – POSH at Work