6 Nov 2019 12:00 PM GMT
The Delhi High Court has held that seeking permission from employer to travel to one country due to medical exigencies but going to different countries instead, amounts to misconduct and disciplinary action may be initiated against such persons. The observation was made Justice Suresh Kumar Kait while deciding the plea of one Anju Bala, whose services as a Manager were terminated...
The Delhi High Court has held that seeking permission from employer to travel to one country due to medical exigencies but going to different countries instead, amounts to misconduct and disciplinary action may be initiated against such persons.
The observation was made Justice Suresh Kumar Kait while deciding the plea of one Anju Bala, whose services as a Manager were terminated by the Respondent, GAIL (India) Limited.
While she had taken child care leave from the Respondent to travel to China for treatment of her daughter, it was found that she had travelled to China, Singapore, Malaysia, Hong Kong, Bangkok etc. Holding the same to be misconduct, the court said,
"the petitioner had sought permission to go to China for treatment of her daughter but admitted fact is that she travelled to various countries and that is without taking prior permission from the respondents. Thus going to different countries without permission is a misconduct. Accordingly, respondents are at liberty to initiate inquiry if deem fit by taking steps afresh by giving opportunity on being heard, to the petitioner."
Nonetheless, noting that the Petitioner had in fact left the country after taking permission from GAIL to get the best treatment for her daughter, Justice Kait said that the same could not lead to an adverse conclusion that the Petitioner's absence was willful.
"Petitioner had to leave the country in emergency and then she had to stay there against her wishes and in compelling circumstances. In other words, the travelling abroad by the petitioner was in emergent and compelling situation and was not willful. Nevertheless she availed treatment for her daughter at China," he said.
Reliance was placed on Maneka Gandhi v. Union of India, (1978) 1 SCC 248, to hold that even though the Rules require prior permission for travelling abroad, Petitioner has a justifiable explanation for non compliance of the Rules and therefore her travelling abroad due to medical emergency while on childcare leave cannot be treated as willful.
Reference was also made to the ruling in Satish Chandra Verma v. Union of India & Anr., 2019 (2) SCT 741(SC), to assert that the Petitioner had the fundamental right to travel abroad especially after she had duly informed about her proceeding abroad to respondents and had also applied for extension of leave.
Granting relief to the Petitioner, the court allowed her prayer for re-instatement of her services with all consequential benefits, while noting that the procedure adopted by the company to terminate her in the first place suffered from discrepancies.
The court was in consonance with the Petitioner's submissions that the Respondent had sanctioned child care leave to the Petitioner and the cancellation of the same for lack of affidavit was never communicated to her. Moreover, the charge sheet so framed by the Respondent authorities was also never served upon the Petitioner.
"when no order cancelling the leave of the petitioner and calling upon her to re-join the duty had been passed and the duly sanctioned leave was cancelled only in the charge sheet, no misconduct could have been alleged against the petitioner and the impugned charge sheet could not have been issued," the court said.
Reliance was placed on Union of India & Ors v. Dinanath Shantaram Karekar & Ors., AIR 1988 SC 2722, wherein it was held that that in the absence of actual service of the charge sheet, the entire proceedings are vitiated.
With regards non-submission of the affidavit to obtain the CCL, the court said,
"Regarding requirement of affidavit at the time of applying for CCL, when the petitioner was not required to furnish any such affidavit and the leave was duly sanctioned, by no stretch of imagination, one could say that in not furnishing a document which was never asked for, the petitioner committed any misconduct regarding visiting to China."
The court also concurred with the Petitioner's submission that under no circumstances, the authority subordinate to the appointing authority could have passed the order of removal of Petitioner from her service.
GAIL had in this behalf argued that employees of GAIL are not "govt. employees" and therefore the mandate under Article 311(1) that the order of punishment of removal/dismissal cannot be passed by an authority subordinate to the appointing authority, is not applicable.
It further submitted that GAIL Employees (Conduct, Disciplinary and Appeal) Rules, 1986 prescribe Executive Director as the disciplinary authority for an officer E-4 Grade and thus the disciplinary authority need not be the appointing authority for issuance of the charge sheet and an authority though subordinate to the appointing authority but if superior to the charged officer, is competent to issue charge memo.
However, relying on the ratio of State of UP v. Ram Naresh Rai, (1970) 3 SCC 173, wherein the Supreme Court held that "…the power can be conferred on an officer other than the appointing authority to dismiss a Government servant provided he is not subordinate in rank to the appointing office or authority," the court directed reinstatement of the Petitioner's services with all consequential benefits and with 50% of the back wages for the period she had not worked.
The Petitioner was represented by Advocate A.K. Bhardwaj with Advocate Jagriti Singh and GAIL by Senior Advocate V.K. Garg with Advocates Noopur Dubey and Amit Kumar.
[Read Judgment Here]