2019 Supreme(Del) 1886

IN THE HIGH COURT OF DELHI AT NEW DELHI
Suresh Kumar Kait, J.
Anju Bala – Appellant
Versus
Gail (India) Limited and Others – Respondents
Writ Petition (Civil) No. 13901 of 2018
Decided On : 05-11-2019

Headnote:

GAIL EMPLOYEES (CONDUCT, DISCIPLINE AND APPEAL) RULES, 1986 - Disciplinary Authority - Subordinate Authority - Removal from Service - Natural Justice - Service of Charge Sheet - Fundamental Right to Travel Abroad - Emergency - Compelling Circumstances - Willful Absence - Prior Permission - Unauthorized Absence - Misconduct - Reinstatement with Back Wages - Subsequent Inquiry.

Fact of the Case:

Petitioner, an employee of GAIL (India) Limited, was granted childcare leave (CCL) for the period from 25.04.2016 to 25.10.2016. However, she proceeded abroad without prior permission from the competent authority and did not submit an affidavit as mandated by the GAIL Leave Rules. Disciplinary proceedings were initiated against her, and she was eventually removed from service. The petitioner challenged the removal order, arguing that the charge sheet was not served upon her, the inquiry was conducted ex-parte, and the penalty of removal was imposed by an authority subordinate to the appointing authority.

Finding of the Court:

The Court held that the charge sheet was not served upon the petitioner, the inquiry was conducted ex-parte, and the penalty of removal was imposed by an authority subordinate to the appointing authority. The Court also held that the petitioner's absence from duty was not willful but was due to an emergency and compelling circumstances. The Court further held that the petitioner had a fundamental right to travel abroad and that she had duly informed the respondents about her proceeding abroad and had also applied for extension of leave. The Court set aside the impugned order and directed the respondents to reinstate the petitioner in service with all consequential benefits and 50% of the backwages for the period she had not worked.

Issues: 1. Whether the charge sheet was served upon the petitioner? 2. Whether the inquiry was conducted ex-parte? 3. Whether the penalty of removal was imposed by an authority subordinate to the appointing authority? 4. Whether the petitioner's absence from duty was willful? 5. Whether the petitioner had a fundamental right to travel abroad? 6. Whether the petitioner had duly informed the respondents about her proceeding abroad and had also applied for extension of leave?

Ratio Decidendi: 1. The Court held that the charge sheet was not served upon the petitioner, as there was no actual service of the charge sheet and the entire proceedings were vitiated. 2. The Court held that the inquiry was conducted ex-parte, as the whereabouts of the petitioner were not known and there could not be any question of service of charge sheet upon her. 3. The Court held that the penalty of removal was imposed by an authority subordinate to the appointing authority, as the order was passed by an authority sub-ordinate to the appointing authority and there was no prior approval by the appointing authority. 4. The Court held that the petitioner's absence from duty was not willful, as she had proceeded abroad due to an emergency and compelling circumstances. 5. The Court held that the petitioner had a fundamental right to travel abroad, as ruled by the Hon'ble Supreme Court in Satish Chandra Verma vs. Union of India Another, (2019) 2 SCT 741 (SC). 6. The Court held that the petitioner had duly informed the respondents about her proceeding abroad and had also applied for extension of leave, as she had sent an intimation to GAIL for proceeding abroad for her daughter's treatment and had also applied for extension of CCL.

Final Decision: The Court set aside the impugned order and directed the respondents to reinstate the petitioner in service with all consequential benefits and 50% of the backwages for the period she had not worked. The Court also held that the respondents were at liberty to initiate inquiry if deem fit by taking steps afresh by giving opportunity on being heard, to the petitioner.