Central Administrative Tribunal - Delhi
Acp Mahtiap Singh Bisht vs Union Of India Through on 13 September, 2013
Central Administrative Tribunal Principal Bench OA No.82/2013 MA No.226/2013 & OA No.274/2013 Reserved on: 25.04.2013 Pronounced on: 13.09.2013 Honble Mr. G. George Paracken, Member (J) Honble Dr. Birendra Kumar Sinha, Member (A) OA No.82/2013 ACP Mahtiap Singh Bisht, PIS No. 16770085 S/o late Shri K.S. Bisht, R/o XY-50, Sarojini Nagar, New Delhi. Applicant (By Advocate: Shri Ankur Chhibber) Versus Union of India through 1. Secretary, Ministry of Home Affairs, New Delhi. 2. The Director C.B.I., C.G.O. Complex, Lodi Road, New Delhi. 3. The Commissioner of Police, Police Headquarters, IP Estate, MSO Building, New Delhi. 4. The Under Secretary, Government of India, Ministry of Home Affairs, North Block, New Delhi 5. The Deputy Secretary (Home-I), Home Police-I/Establishment Department, 5th Level, C Wing, Delhi Secretariat, IP Estate, New Delhi. 6. The Joint Commissioner of Police, Headquarters, Delhi Police, Police Headquarters, IP Estate, MSO Building, New Delhi. Respondents (By Advocate: Shri R.N. Singh and Shri Amit Anand) OA No.274/2013 ACP Mahtiap Singh Bisht, PIS No. 16770085 S/o late Shri K.S. Bisht, R/o XY-50, Sarojini Nagar, New Delhi. Applicant (By Advocate: Shri Ankur Chhibber) Versus Union of India through 1. Secretary, Ministry of Home Affairs, New Delhi. 2. The Director C.B.I., C.G.O. Complex, Lodi Road, New Delhi. 3. The Commissioner of Police, Police Headquarters, IP Estate, MSO Building, New Delhi. 4. The Deputy Secretary (Home-I), Home Police-I/Establishment Department, 5th Level, C Wing, Delhi Secretariat, IP Estate, New Delhi. 5. The Joint Commissioner of Police, Headquarters, Delhi Police, Police Headquarters, IP Estate, MSO Building, New Delhi. Respondents (By Advocate: Shri R.N. Singh and Shri Amit Anand) O R D E R By Dr. Birendra Kumar Sinha, Member (A):
Since the afore two cases relate to two orders pertaining to identical issue though made in continuity. All other facts and arguments being the same, these two cases are being heard and commonly decided.
2. The case of the applicant, in brief, is that the applicant, while working as Sub Inspector in Delhi Police, was selected as Inspector in the Central Bureau of Investigation (hereinafter referred to as CBI) in the year 1986 initially for one year and extended subsequently. In 1992, the applicant was recommended for appointment as Deputy Superintendent of Police and a notification granting him officiating status in CBI on deputation w.e.f. 15.12.1992 was also issued. The applicant was thereafter served with a show cause vide Memorandum dated 21.12.2005 charging him with sexual harassment and improper conduct towards one Ms. Reema Bhati an ad hoc Stenographer in the same office, to which a reply was filed by the applicant. The enquiry was conducted by an enquiry team comprising one S. Sundari Nanda, DIG/CBI/AC.III and Sonali Mishra, SP/CBI/ACU.IX, which found the charges substantiated. The enquiry report also makes a mention of the fact that the complainant Reema Bhatti was so traumatized that she stopped coming to the office and had submitted her resignation on account of the misconduct of the applicant. The enquiry team recommended award of censure to the applicant.
3. On 21.08.2008, the applicant was repatriated to his parent organization i.e. Delhi Police as Inspector. However, on 19.09.2009 he was promoted as ACP i.e. entry grade to DANIPS by the DPC and was posted as such in PG Cell, Central District. The case of the applicant is that he was reverted to the Inspector grade with effect from the date of his appointment to DANIPS vide order dated 03.01.2013 which has been impugned in OA No.82/2013.
4. Having learnt about filing of OA challenging the order dated 03.01.2013 by the applicant, it is the case of the applicant, the respondents issued another order dated 08.01.2013 withdrawing the appointment of the applicant as ACP and directing that the recommendations of the DPC in respect of the applicant be kept under sealed cover.
5. The learned counsel for the applicant has challenged this order principally on the ground of violation of the rules of natural justice. Once a person has been promoted, he cannot be reduced in rank without following the procedures prescribed. In the second place, there was no departmental enquiry pending against the applicant and, as such, there was no occasion to keep the recommendations of the DPC under sealed cover. The DPC had scrutinized the records of the applicant for the previous five years and vigilance clearance had also been granted. In consideration of the performance and the vigilance certificate issued by the Department, the DPC had taken a conscious decision to promote the applicant. The learned counsel for the applicant further argued that though a report submitted by the Sexual Harassment Committee is deemed to be a report under Rule 14 of CCS (CCA) Rules, 1965 but it has never been served upon the applicant. The enquiry was a fact finding enquiry not conducted under provisions of Rule 14 of the CCS (CCA) Rules, 1965 and, hence, could not have been made a basis of the reversion under challenge. In fact, the applicant goes even to the extent of challenging the report aforesaid being an afterthought. The applicant further alleged malice in law as he was not given any opportunity to cross-examine the witnesses. It is the further case of the applicant that the regular promotion granted to him cannot be reversed after a gap of three years and that too when no departmental enquiry had been ordered against even while he was in CBI.
6. The respondents have filed a counter affidavit stating that the applicant had been granted a proforma promotion in the rank of Inspector in the next below rule w.e.f. 18.08.1994 and confirmed as Inspector on 18.08.1996. The applicant was charged with an act of sexual harassment in respect of one Ms. Reema Bhatti and the charges framed against him were prima facie substantiated. The report of the Committee was deemed to be an enquiry report under Rule 14 of the CCS (CCA) Rules, 1965. In respect to which the applicant submitted his written representation on 31.08.2006 and thereafter the matter was referred to the UPSC which suggested the penalty, to be imposed upon the applicant, of reduction to a lower stage by one stage in the time scale of pay for a period of one years with further direction that he will not earn increment of pay during the period of such reduction and on its expiry, it will have the effect of postponing the future increments of his pay. The applicant was accordingly reverted to his parent department that being the Delhi Police under the provisions of Section 21(2) (ii) of the CCS (CCA) Rules, 1965 explaining the circumstances under which such reversion had taken place. The applicant stood repatriated w.e.f. 05.02.2009 and the details of which were conveyed and received in the vigilance branch of Delhi Police on 23.07.2008. The respondents submit that the case remained pending in Vigilance and Crime Branch for the decision. On 03.12.2008, in the meantime, the Ministry of Home Affairs called for the particulars of Inspectors of Delhi Police for promotion to DANIPS entry grade (since there was nothing reported against the applicant by Vigilance Branch and Crime Branch, he was appointed to the entry grade of DANIPS by MHA vide notification dated 16.10.2009). The action against the applicant remained pending between the Vigilance and Crime Branch of Delhi Police for which the respondents submit that the vigilance enquiry had been conducted and responsibility has been fixed. When the matter of suppression of material facts came to the notice of the MHA, the respondents have submitted that no entry had been made in the ACRs to this effect as there is no column of such entries. The promotion was made in consideration of material facts on account of an error. There is no requirement of a show cause under FR 31 (a) that caters such contingencies of an officer getting promoted erroneously. In such cases the matter will stand to be regulated under the terms of general or special orders issued by the President in this behalf.
7. The learned counsel for the respondents has relied the OM dated 21.03.1968 which holds that such promotions so erroneously obtained are void ab initio and, therefore, provisions of Article 311(2) of the Constitution are not attracted and the procedure of show cause notice is not required to be followed. It is an admitted fact that the disciplinary action for major penalty was pending against the applicant which could not be communicated to the DPC. The learned counsel for the respondents has further asserted that the order withdrawing the promotion to the applicant is not a penal action but is a withdrawal of promotion erroneously granted to him. Since the promotion of the applicant was ab initio void and would not have been given had the full facts been brought to the notice of the DPC, there is nothing wrong in ordering recourse to a sealed cover procedure. The learned counsel for the respondent no.1 Shri R.N. Singh has strongly contended that none of the cases cited by the applicant is relevant to the facts of the instant OAs as there is no penalty imposed but only an error is being corrected. He emphatically argued that no one can have the profit from the errors of others and the same are liable to be corrected as and when detected.
8. In the rejoinder application, the learned counsel for the applicant has argued that the principle of natural justice has been violated. He further submits that the provisions of FR 31-A are not applicable to the case of the applicant.
9. We have carefully considered the documents including the case cited by the applicant, the other documents submitted and have also listened patiently to the oral submissions made by their respective counsel, on the basis of the above, the following issues emerge:-
Is the right of natural justice one of the blind applications in favour of the applicant or it makes a distinction between conditions where it needs to be applied or where it does not need to be applied?
Whether the Complaint Committee constituted in terms of the judgment in the matter of Vishakha and Others versus State of Rajasthan and Others [1997 (6) SCC 241] is a substitute of Rule 14(2) of the CCS (CCA) Rules, 1965?
Is the case of reversion merely a correction of the wrong done or a penal action?
Whether by considering such matters, the interest of the aggrieved emanating from the act of the applicant also needs to be taken consideration or is to be completely overlooked?
What relief, if any, can be granted to the applicant?
10. In so far as the first issue is concerned, the question that we are compelled to ask ourselves is that whether the right of natural justice is to be applied blindly more by the way of mathematical formula than a live case of justice. In this regard, opinions have differed. A large number of cases, which have been cited by the learned counsel for the applicant, definitely points in this direction. In the case of State of Punjab versus Chaman Lal Goyal [1995 (2) SCC 570], the issue under consideration was that the date the applicant handed over the charge as Superintendent, Distt. Jail-cum-Security Jail, Nabha on 25.12.1986, there was an escape of prisoners on the intervening night of 1st/2nd January, 1987. The applicant was charged with running the administration loosely and giving concessions to the hard core militants against the provisions of Jail Manual. The applicant approached the Honble High Court for quashing all the charges and the appeal was allowed by holding as under:-
13. Applying the balancing process, we are of the opinion that the quashing of charges and of the order appointing enquiry officer was not warranted in the facts and circumstances of the case. It is more appropriate and in the interest of justice as well as in the interest of administration that the enquiry which had proceeded to a large extent be allowed to be completed. At the same time, it is directed that the respondent should be considered forthwith for promotion without reference to and without taking into consideration the charges or the pendency of the said enquiry and if he is found fit for promotion, he should be promoted immediately. This direction is made in the particular facts and circumstances of the case though we are aware that the rules and practice normally followed in such cases may be different. The promotion so made, if any, pending the enquiry shall, however, be subject to review after the conclusion of the enquiry and in the light of the findings in the enquiry. It is also directed that the enquiry against the respondent shall be concluded within eight months from today. The respondent shall cooperate in concluding the enquiry. It is obvious that if the respondent does not so cooperate, it shall be open to the enquiry officer to proceed ex parte. If the enquiry is not concluded and final orders are not passed within the aforesaid period, the enquiry shall be deemed to have been dropped.
11. We are not very sure as to how this judgment helps the case of the applicant. In the case of Ashok Kumar Singh versus Union of India & Others [2002(61)DRJ43] where the petitioner was regularly promoted to the post of Assistant Engineer (Group-B) subject to the condition that he was not undergoing any punishment in D&AR/Vigilance. His promotion was later converted into ad hoc on noticing that he was facing a prosecution case at the time of his empanelment in Group-B service. The Honble High Court allowed the petition holding that:-
It is not in dispute that petitioner was vested with certain valuable rights on his promotion and these could not be taken away at his back and without an inquiry in time with mandate of Article 311. Respondents failure to do so renders their order of reversion unsustainable. Tribunal, Therefore, was in error in taking the view that they had rectified the mistake. We accordingly allow this petition and quash the reversion order dated 6.9.1999 passed by respondents against petitioner. We are, however, informed that he was still holding the post of assistant Engineer (Group-B) pursuant to interim stay orders obtained by him. As such, there was no need to direct his reinstatement to the promoted post. This decision is supported by a decision in the case of Akbar Ali versus Union of India & Others [(2011) 2GLR 592]; Duni Chand versus The State of H.P and Another [ILR 1980 9 HP 576]; Smt. Sarla Arora versus Union of India & Others [OA No.2179/1992 decided by the Principal Bench on 24.09.1997]; Gurdip Kaur and Another versus State of Haryana & Others [CWP No.19728 of 1996 decided on 12.03.1997 by Honble High Court of Punjab and Haryana); and by Mr. M.H. Soni versus Union of India & Others [OA No.539 of 1998 decided on 27.06.2003 by the Ahmedabad Bench of this Tribunal). In the case of Jagdish Prasad Shastri versus State of U.P. and Others [1970 (3) SCC 631, the Honble Supreme Court set aside the order reverting the officer to his substantive post as the same was made for collateral purpose which is bad in law which finds corroboration in the cases of M.S. Usmani and Others versus Union of India and Others [1995 (2) SCC 377] and Union of India and Another versus Narendra Singh [2008 (2) SCC 750]. In the case of K.S. Sankaranarayanan Versus Inspector General of Police and Superintendent of Police Railways [WP No.39395 of 2005 decided on 01.04.2010] the Honble High Court of Madras set aside the order of reversion on the ground that no notice had been given. The same view has been taken in the case of Ram Binay Sharma vesus Chairman, Coal India Ltd. And Others [2008 (2) OLR 327] and in the matter of Hc/Dv Shiv Kumar Singh versus Ministry of Home Affairs & Others [WP(C) No. 4631/2008 decided on 25.01.2010 by the Honble High Court of Delhi] though the facts were different but grading was allowed to be maintained. In the case of N.K. Durga Devi versus Commissioner of Commercial Taxes, Hyderabad and Others [1997 (11) SCC 91], the Honble Supreme Court has set aside the order of relaxation was set aside as no notice had been given. In Ram Ujarey versus Union of India [1999 (1) SCC 685], the Honble Supreme Court did not find the order of limitation sustaining enough. All this is one side of the matter.
12. However, the facts here are different. It is an admitted position that there was a complaint relating to sexual harassment against the applicant while he was officiating as Dy. Superintendent of Police in the host organization that being the CBI. The afore complaint was enquired into by the Complaint Committee as directed in the case of Vishakha and Others versus State of Rajasthan and Others (supra) and found substantiated. Since admittedly the applicant was associated with the enquiry, he cannot now claim that no opportunity of hearing had been given to him. It was on this ground alone that the applicant was reverted to the lending organization. It is also an admitted fact that when the case of the applicant was considered by the DPC, the full facts relating to his sexual harassment and the resultant action pending against him had been suppressed by the Crime and Vigilance Section of Delhi Police and had not been placed before the DPC. Had it been brought to the notice of the DPC, it would not have recommended the applicant for promotion. The DPC, therefore, took a decision to promote him in ignorance of these facts. It is also an admitted position that as and when the full facts came to the notice of the respondent no.1 Ministry of Home Affairs, it sought to correct the position by reverting the applicant and directing the sealed cover procedure. Admittedly, while making the reversion, the respondents did not issue any notice to the applicant. The question before us in the present issue is that do we dub the act of reversion merely because on the ground of no notice had been given and, therefore, the right of natural justice claims to have been violated. Is in every case where no notice has been given including the present one, the right of natural justice can be claimed to have been violated. In this regard, in a series of decisions, the Honble Supreme Court has taken the view that error committed can be rectified even when it results in hardship to certain individuals. In the case of Indian Council of Agricultural Research and Another Vs. T.K. Suryanarayan and Others (1997 (6) SCC 766), the Honble Supreme held as under:-
8. We are, however, unable to accept the submission made by the learned counsel appearing in both these SLPs. Even if in some cases, erroneous promotions had been given contrary to the said Service Rules and consequently such employees have been allowed to enjoy the fruits of improper promotion, an employee cannot base his claim for promotion contrary to the statutory Service Rules in law courts. Incorrect promotion either given erroneously by the department by misreading the said Service Rules or such promotion given pursuant to judicial orders contrary to Service Rules cannot be a ground to claim erroneous promotion by perpetrating infringement of statutory Service Rules. In a court of law, employees cannot be permitted to contend that the Service Rules made effective of 1st October, 1975 should not be adhered to because in some cases erroneous promotions had been given. The statutory Service Rules must be applied strictly in terms of the interpretation of Rules as indicated in the decision of Three Judges Bench of this Court in Khetra Mohan's case (1994 AIR SCW 4154). When the said Service Rules were introduced w.e.f. 1st October, 1975, one time exercise was required to be made to decide the fitment of the employees in different grades. Except in case of fitment in grade T-1-3 of Category 1 and consequential accelerated promotion to grade T-2-3 of Category 2, on the basis of qualification in no other case accelerated promotion on the basis of educational qualification is permissible In Union of India and Anr. Vs. Narendra Singh (2008 (2) SCC 750), Honble Supreme Court has held that mistakes are mistakes and they can always be corrected by following due process of law. The applicant in that case had been erroneously given promotion and had worked in that capacity for 4 years. Subsequently, when the mistake was discovered, it was sought to be corrected. The Honble Supreme Court held in this regard as under:-
32. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In Indian Council of Agricultural Research & Anr. v. T.K. Suryanarayan & Ors., (1997) 6 SCC 766, it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore Statutory Rules. In Al Mehdawi Vs. Secretary of State for the Home Department (1990 (1) A.C. 876) followed in State Bank of Patiala and Ors Vs. S.K.Sharma (JT 1996 (3) SC 732), it had been held that natural justice merely imposed standards of procedural fairness on the decision making authority and it does not demand that the person affected should actually receive a fair hearing. A breach of procedure, whether called a failure of natural justice, or an essential administrative fault cannot bestow statutory remedy to appeal in the Court, unless there has been something of substance lost by the failure. Similarly, in the case of S. L. Kapoor versus Union of India & Others [AIR 1981 SC 136], where a Municipal Committee was superseded even without a notice to the Committee, the Honble Supreme Court held as under:-
"In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will come from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal."
In the case of Hiranath Misra v. Rajendra Medical College, [(1973) 1 SCC 805], where the applicant had entered the girls hostel in nude condition, the Honble Supreme Court held that the denial of opportunity to cross-examine the material witnesses did not amount to violation of the rules of natural justice. The same view has been supported in K. L. Tripathi v. State Bank of India [(1984) 1 SCC 43].
In Managing Director, ECIL versus B. Karunakar, [(1993) 4 SCC 727], a Constitution Bench of the Honble Supreme Court held that in all cases non-furnishing of enquiry report to the delinquent does not vitiate the enquiry proceedings. The relevant part whereof is as under:-
"Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/ management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report****."
(Emphasis added) ***The decision in State of Orissa v. Dr. Binapani Dei, (1967) 2 SCR 625 : (AIR 1967 SC 1269), it is obvious, has to be read subject to this decision. In the case of State Bank of Patiala versus S.K. Sharma (supra), the Honble Supreme Court has held as under:-
29. The decisions cited above make one thing clear, viz., principles of natural justice cannot be so reduced to any hard and fast formulae. As said in Russell v. Duke of Norfolk (1949) 1 All ER 109 way back in 1949, these principles cannot be put in a strait-jacket. Their applicability depends upon the context and the facts and circumstances of each case. (See Mohinder Singh Gill v. Chief Election Commissioner, (1978) 2 SCR 272 : (AIR 1978 SC 851). The objective is to ensure a fair hearing, a fair deal, to the person whose rights are going to be affected. (See A. K. Roy, v. Union of India (1982) 1 SCR 271 : (AIR 1982 SC 710) and Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664 : (AIR 1981 SC 818). As pointed out by this Court in A. K. Kraipak v. Union of India, (1969) 2 SCC 262 : (AIR 1970 SC 150), the dividing line between quasi-judicial function and administrative function (affecting the rights of a party) has become quite thin and almost indistinguishable - a fact also emphasised by House of Lords in C. C. U. v. Civil Services Union (supra) where the principles of natural justice and a fair hearing were treated as synonymous. Whichever the case, it is from the standpoint of fair hearing - applying the test of prejudice, as it may be called - that any and every complaint of violation of the rule of audi alteram partem should be examined. Indeed, there may be situations where observance of the requirement of prior notice/hearing may defeat the very proceeding - which may result in grave prejudice to public interest. It is for this reason that the rule of post-decisional hearing as a sufficient compliance with natural justice was evolved in some of the cases, e.g., Liberty Oil Mills v. Union of India, (1984) 3 SCC 465 : (AIR 1984 SC 1271).
There may also be cases where the public interest or the interests of the security of State or other similar considerations may make it inadvisable to observe the rule of audi alteram partem altogether [as in the case of situations contemplated by clauses (b) and (c) of the proviso to Article 311 (2)] or to disclose the material on which a particular action is being taken. There may indeed by any number of varying situations which it is not possible for anyone to foresee. In our respectful opinion, the principles emerging from the decided cases can be stated in the following terms in relation to the disciplinary orders and enquiries : a distinction ought to be made between violation of the principle of natural justice, audi alteram partem, as such and violation of a facet of the said principle. In other words, distinction is between "no notice", "no hearing" and "no adequate hearing" or to put it in different words, "no opportunity" and "no adequate opportunity." To illustrate - take a case where the person is dismissed from service without hearing him altogether [as in Ridge v. Baldwin, (1964 AC 40]. It would be a case falling under the first category and the order of dismissal would be invalid - or void, if one chooses to use that expression (Calvin v. Carr, (1980 AC 574). But where the person is dismissed from service, say, without supplying him a copy of the enquiry officer's report (Managing Director, E. C. I. L. v. B. Karunakar (1994 AIR SCW 1050) or without affording him a due opportunity of cross-examining a witness (K. L. Tripathi, AIR 1984 SC 273), it would be a case falling in the latter category - violation of a facet of the said rule of natural justice - in which case, the validity of the order has to be tested on the touch stone of prejudice, i.e., whether, all in all, the person concerned did or did not have a fair hearing. It would not be correct - in the light of the above decisions to say that for any and every violation of a facet of natural justice or of a rule incorporating such facet, the order passed is altogether void and ought to be set aside without further enquiry. In our opinion, the approach and test adopted in B. Karunakar should govern all cases where the complaint is not that there was no hearing (no notice, no opportunity and no hearing) but one of not affording a proper hearing (i.e., adequate or a full hearing) or of violation of a procedural rule or requirement governing the enquiry; the complaint should be examined on the touch stone of prejudice as aforesaid.
13. In State Bank of India Vs. K.P.Narayan Kutty (2003 (1) Vol.36 SCSLJ 205), it was held that the plea of violation of natural justice cannot be accepted unless it is established that non adherence to the principle caused hardship to the employees concerned. There is also the useless formality theory. In the case of M.C. Mehta versus Union of India & Others [1999 (6) SCC 237], the Honble Supreme Court has laid down that even in such cases where the facts are neither admitted nor disputed, the Court may exercise its discretion. Refusing to remand the case back, even though natural justice might have stood violated, their Lordships felt that such act of remand was not to bring any outcome different from what had already taken place.
14. In the case of Tasleem Murad versus Government of Andhra Pradesh [ 2002 (5) ALD 307], the Honble High Court of Andhra Pradesh has relied upon the judgment of Honble Supreme Court in the case of Aligarh Muslim University versus Mansoor Ali Khan [2000 (7) SCC 529] where the Honble Supreme again considered the question of "useless formality" theory, and after referring to M.C.Mehta (supra), S.L.Kapoor v. Jagmohan, , K.L.Tripathi v. State Bank of India, , S.K.Sharma (supra) and Rajendra Singh (supra), summarized as under:-
24. The 'useless formality' theory, it must be noted, is an exception. Apart from the class of cases of "admitted or indisputable facts leading only to one conclusion" referred to above, - there has been considerable debate of the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M. C. Mehta, 1999 AIR SCW 2754 : (AIR 1999 SC 2583), referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Singham, Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs, Garner, Craig, De Smith, Wade, D. H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the Court will be prejudging the issue. Some others have said, that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via-media rules. We do not think it necessary, in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case.
xxx xxx xxx
34. Thus, in our view, in the above peculiar circumstances, the only conclusion that can be drawn is that even if Mr. Mansoor Ali Khan had been given notice and he had mentioned this fact of job continuance in Libya as a reason, that would not have made any difference and would not have been treated as a satisfactory explanation under Rule 5(8)(i). Thus, on the admitted or undisputed facts, only one view was possible. The case would fall within the exception noted in S. L. Kapoor's case (AIR 1981 SC 136). We, therefore, hold that no prejudice has been caused to the officer for want of notice under Rule 5(8)(i). We hold against Mr. Mansoor Ali Khan under Point 5.
15. We pause here and see how the theory of useless formality could be applied to the facts of the instant case. Assuming that the information received had not been suppressed and placed before the DPC, the obvious conclusion would have been to put the case of the applicant under sealed cover in terms of the decision in Union of India Etc. Etc. versus K.V. Janakiraman Etc. Etc. [1991 (4) SCC 109]. In the instant case, there has been suppression of the information and thus the order was erroneously obtained and the basic law of equity in this regard that operates is that thou shall not profit from the mistakes of others. Assuming that we quash the impugned order and direct the respondents to issue a notice and proceed afresh, it would only involve the determination into a long process. This is where the theory of useless formality takes over. It is unnecessary that in every case where notice had not been given the court will rush into blindly the rule of natural justice and quash the offending order. That is not the way. Before the rule of natural justice is applied, one has to look into the facts and circumstances of the case; to see what prejudice has been caused to the employee and whether it leads to imposition of burden upon the authorities being a useless formality. We, therefore, decide this issue against the applicant.
16. In so far as the second issue is concerned, in the case of Vishakha and Others versus State of Rajasthan and Others (supra) their Lordships have held that each such incident results in violation of the fundamental rights of 'Gender Equality' and the 'Right to Life and Liberty'. It is also a clear violation of the rights under Articles 14, 15 and 21 of the Constitution and leads to violation of the victim's fundamental right under Article 19(1)(g) 'to practice any profession or to carry out any occupation, trade or business'. Such violations, therefore, attract the remedy under Article 32 of the Constitution and happens to be a recurring phenomenon. The objective of the judiciary as mentioned in the Beijing statement is that all persons are able to live securely under the Rule of Law; to promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and to administer the law impartially among persons and between persons and the State. Violation of sexual harassment in work place also leads to undermining the right to employment and the fundamental rights guaranteed under the Constitution. It has, therefore, directed constitution of Complaint Committee not less than half of its member being women and should be headed by a woman. Rule 14 (2) of the CCS (CCA) Rules, 1965 has also been amended whereby inserting a proviso, which reads as under:-
Provided that where there is a complaint of sexual harassment within the meaning of rule 3C of the Central Civil Services (Conduct) Rules, 1964, the complaints Committee established in each ministry or Department or Office for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the complaints committee for holding the inquiry into the complaints of sexual harassments, the inquiry as far as practicable in accordance with the procedure laid down in these rules.
17. Since the judgment in the case of Vishakha and Others versus State of Rajasthan and Others (supra) was pronounced 16 years ago, there have been number of decisions on the subject. However, the one that we rely upon in the instant case relates to that of Medha Kotwal Lele & Others versus Union of India and Others [2013(1) SCC 297]. In this case, the Honble Supreme Court has been very categorical in its findings that the report of the Complaint Committee appointed under the mandate of the case of Vishakha and Others versus State of Rajasthan and Others (supra) is not a mere preliminary investigation or enquiry. It is instead a finding/report in the misconduct of the delinquent. For the sake of greater clarity, the relevant part of the order is reproduced as under:-
44. In what we have discussed above, we are of the considered view that guidelines in Vishaka 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 disciplinary action but shall be treated as a finding/report in an inquiry into the misconduct of the delinquent. This makes it very clear that it is a substitute to enquiry appointed by the disciplinary authority and is to be construed as such. The applicant cannot deny that he was associated with the enquiry. The denial to right of cross-examination, therefore, does not amount to violation of the rules of natural justice. This issue is also accordingly decided against the applicant.
18. In so far as third issue is concerned, we take the view that where a decision is obtained by suppression of material facts or in darkness of the changes that have taken place, it is an integral part of every administrative process that it is subject to correction as and when such material facts are brought to light. Of course, this is subject to the applicability of reasonableness. In view of the aforementioned discussion dealing with issue No.1, it is clear that this right has not been taken away from the administrative and continues to reside. We could substitute it by an example. Were a beggar to don the discarded robes of a judge and occupy his chair, the question still remain that whether he would be entitled to protection under Article 124 (4) of the Constitution or marshal of the court will proceed to evict him straightaway. The answer obviously is that he would be evicted without ado. Such acts will not give rise to the protective clauses of the Constitution. Similarly, in the instant case the offence relating to sexual harassment stands established in a prima facie manner against the applicant. Any promotion obtained without consideration of this fact is liable to be corrected as and when it is discovered. We fully endorse the view of the learned counsel for the respondents that it is not a punishment but rather a correction of an order made in suppression of the material facts.
19. In so far as Issue No.4 is concerned, the law of justice does not stand in a state of suspended animation. Before delivering justice, one has to consider the interest of the parties and also the impact of the order to be pronounced on the larger society. It has been submitted by the respondents that the complainant Ms. Reema Bhatti was so traumatized by the act of sexual harassment at the hands of the applicant that she stopped coming to office and was compelled to resign her job. Hence, in the justice delivery system, not only the interest of the applicant alone is to be seen but the impact on larger society cannot be overlooked, meaning thereby a fine and delicate balance has to be maintained between the interest of the applicant, the respondents and the members of the society at large. However, in view of the above discussion, we strongly feel that quashing the order of reversion at this stage will disturb that delicate balance.
20. In so far as the last issue is concerned, the afore discussion and resolutions to the earlier four Issues speak for themselves. We do not find any merit in these OAs and, therefore, issue the following directives:-
Both these Original Applications are dismissed as being devoid of merits;
There shall be no order as to costs.
(Dr. Birendra Kumar Sinha) (G.George Paracken)
Member (A) Member (J)
/naresh/