Central Administrative Tribunal - Kolkata
Sujit Baran Mandal vs Intelligence Bureau on 17 July, 2019
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CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA No. O.A. 350/01339/2018 Date of order: Cj. ^ Present Hon^le Ms. Bidisha Banerjee, Judicial Member Hon*ble Dr. Nandita Chatteijee, Administrative Member Sujit Baran Mandal, Son of Late Sushil Sekhar Mandal, Aged about 47 years, Working as Deputy Central Intelligence Officer/ 'aciMsui* Executive,.^ i i/ JJovemnjent of India,-
Ministry oFRoHi^ASif^airs,
35, S^^Pat^yyiar^^
Chanakya Puri,
.!> New Delhi - 110 021.
T>
3. Complaints Committee through its !;
Chairperson Smt. Sapna Tewari, Joint Director, Subsidiary Intelligence Bureau, Bangalore,.
Govt, of India, Ministry of Home Affairs, 9 Infantry Road, Sampangi, 4= 2 O.A. 350.1339.2018 Rama Nagar, Bangalore, Pin-560 001.
4. Smt. SapnaTewari, Joint Director and Chairperson of the Complaints Committee, Subsidiary Intelligence Bureau, Bangalore, Government of India, Ministry of Home Affairs, 9, Infantry Road, Sampangiy--
Rarn^N '"Bangafd if For theAp For C. ■^|C 3 % % C Js' .5 % ■'5 j^T*' W |i' 11% m ^ ffi:
S! 4Tfie applicant has^^^acliedith&Trife^® under Section 19©f the 1? -a^sSfe.. I .jy^ il 1 Admihiptrative#fribut^ls^kt, 198?praying f^p^^dll^mg reli^^ "a'^k Ar^ordfi^uashiiig and/or setting Charge Sheet'^dat^. 9.1'Si^O 17, tfefepu.rported_rep5n^ and finking# of the ICC dated 28.9.20]16 as^erred t^n.the'M^or^to^^^iarge Shfe 9.10.2017.
An loader qiSashing aii'd/S^Stin^^^side mes^fien^ated 19.1.2018 as b.
well as the a'prp'ointmerri?%ojCthe Presen^--/^4*!--^ ^ c. An order quashing-and/ or setting^a^ide the Memorandum dated 6.8.2018 and/or any furme^d^fiSh^communication regarding holding of inquiry.
d. An order directing the respondents to produce/cause production of all relevant records.
e. Any other order or further order/orders as to this Honhle Tribunal may seem fit and proper."
2. Heard Ld. Counsel for both sides, perused pleadings, documents and Rules under reference. Written notes of arguments have been filed by both sides.
3 OA 350.1339.2018 The applicant's submissions, as made through his Ld. Counsel, is that, the applicant is working as a Deputy Central Intelligence Officer under Subsidiary Intelligence Bureau and is presently posted in the Bureau of Immigration, Kolkata.
That, after a long delay after the occurrence of the alleged incident, one of his lady colleagues had made a complaint in which he was implicated along with others.
That, subsequent .to^thve"same, Tnbuiry.^committees were illegally ~ constituted to enquire inAti^Se^tili^^Einftiiirfemid, that, most of his repres^tations^hav-e either not been conSrdoggd have been rejected applicant hai^ been i^uel^.w v being aggMeyed, theMBPjgmf^Bg $ b-i S zs •! | Thaapplicantlhaf^^^fl jg^EBEgggiBlds in support of his | fe; f| ! i:
claim:- I mr
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the luthorities in^initiating
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of^^^y^Iid reportjpf ICC
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(b)Tl;a.t, tli| applicajit's^epx^g^ati^^^^ere^tleitti^-
considered or i'
(c) The inquirycqmmitte^^Was^noiTrihated unlawfully.
(d) The report of the Internal Complaints Committee is not valid in terms of Rule 13(1) of the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013.
(e) And, that, there were no bonafide reasons to initiate a proceeding against the applicant under rules as the same was done in exclusively selecting the applicant amidst an array of •?
4 OA 350.1339.2018 other employees so complained against, so as to subject him to disciplinary proceedings.
Per contra, the respondents have argued that, on 16.9.2015, a complaint was filed by one of the lady employees of RTC Kolkata, inter alia, against the applicant, in which it was alleged that the applicant had made several indecent proposals to her in 2014.
That, the complainant also alleged indecent behaviour of the applicant and a lady Steno-in irTffie sai& bffi'ce^ ^ . 'jV' * ^jB®' jj™, _ That, after;;receiyin&"i%fii S'el.r^®i^ gie^matter had to be . >--
referred to ..v.the Infernal Complaints Committee' btfe the ICC at
toy* ■
nnirrmk_ wb^h'eaded bv a ladv&Offacer. who !d wth, theref^%,®uh'able to th^^elii&iary i IIS^ ' " ■ fs® ® r s enquiry.gwas delegafeH^tS'^ffi^^^^^m^yi^cf^ Bhubaneswar, |who < JEngfji ' 'i ti heated S® Complain Coi^mWP^ f^Tjapthe . , preUnii^^ &> ll R (; ' <«:
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Cfn,%tt grjM pvide their repgrt dated
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28.9.'122016, came^to^We^ctMcIliion^thgii^ appHc^jt^had misb|haved with th^. complainant%y Advancing indecent1 ant, that, % the condufej oiftjie^ ^pplicahf^ith.,his^ladsv ^eno^^^ague^as highly % %:
improper, objectionably and:igih|®offic^§brum-i^and dis^pline. I That, conseqSfentiy, oif9^5e^a'Si€?rbf tl^^lmdings of the ICC, disciplinary proceedings, was ihitiated'against the applicant vide charge memorandum dated 9.10.2017 for major penalty under Rule 14 of the CCS (CCA) Rules, 1965. The applicant had submitted his defence statement denying all charges and accordingly, an inquiry was mandated under Rule 14(2) of CCS (CCA) Rules, 1965. The ICC was appointed as the Inquiring authority to inquire into the charges against the applicant.
5 Respondents would contend that, according to DOPT's OM dated ^Aj 5 O.A. 350.1339.2018 16.7:2015, the Complaints Committee would normally be involved in two stages, firstly, at the time of initial investigation and secondly, when the Complaints Committee would act as the inquiry committee and, hence, the action taken by the respondents were as per CCS (CCA) Rules, 1965.
The respondents would further argue that the applicant was provided with the Inquiry report in August, 2018 and the copy of the complaint dated 16.9.2015 was also provided to him by the ICC. Hence, .i-
I i i 6.1. jTheiiforemostj^Eeg^^r i i ;
Section of th»Se?cd§Lj
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(Preferitiop Prohibitio: jlpAqjk 2'^phave been violajbedp
welwoul.'d^^^^^elhmine the devils of ko examine^^^Hie^^fe the complairit ^.tfiat .asJbeen made agai fby the •s r complain^at concerned. ^ \ % i "To %_ % The Joint d&ector,^^ SIB, Kolkata ^ Sub: Complaint agains^agutegmentakhajEagsment inflicted on the undersigned by Shri Jayanta Biswas (AD/Training, RTC Kolkata).
Respected Sir, This is to bring to your kind notice that since last March, 2014 Shri Jayanta Biswas (AD) is frequently creating mental pressure and psychological harassment on me regarding establishment related matter. Though my transfer/posting is exclusively my personal matter apart from our establishment head, but Shri Jayanta Biswas, is no way connected with establishment matter, is continuously and indecently pressurizing me to ask for posting of another lady staff in our branch. Prior to that, Shri Jayanta Biswas also used to ask me whether I require precious gold ornaments (chain and bracelet etc) quite a number of times. I felt it as indecent proposal but I ignored it for the sake of peace. Neither me nor any of my senior colleagues in our branch is concerned about posting of another lady staff as we are all discharging duties peacefully and staying as a happy family. So why Shri Jayanta Biswas is so keen for the posting of lady official in our branch, and that h-4V' 6 O.A. 350.1339.2018 too of a certain age group, (young and good looking) is beyond my imagination. May be he is involved in some nefarious activities which require the involvement of beautiful young ladies. May be he is involved in such immoral activities that he is thinking of replacing me by somebody who will suit him.
On 1st September 2015 at around 16:30 hrs. Shri Chiranjit Mitra, the then AD/E, SIB, Kolkata (Presently JDD/E, SIB Kolkata) entered our branch and asked whether we have any establishment/accounts related matter to discuss with him. No one has expressed any problem regarding establishment/accounts matter but surprisingly he asked the question four (4) times while giving a glance to Shri Jayanta Biswas in between. Then Shri Jayanta Biswas, without taking any prior consent from me, told Shri Mitra in front of everybody that I require the posting of a lady staff in the branch as I am feeling uncomfortable. This is absolute lie but Shri Mitra caught his words and started telling me that as I am feeling uncomfortable in this branch so he can post me to other branches in Head Quarter or Ni2am Palace.
Shri Sankar Mukhei]ees(Assistant) of''6urrbranch pushed the matter further by suggesting Shn.Mitea^tb'-^st.^me in Hehd>Office. Shri Mukheijee stood up from h^ch^%|dSia%4rtS: sSgges^% so intensely and instantaneously tif§| % seemed to me thatFn^isf'also involved in this pre planned conspnac^ifatched by Shri Biswas and srfriffefra.
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V'! The^entire incideny^^Scl^bnienfems mental pressure On me as the above mentioned persons,^re taking dlci^nJfShri Mitra bemlf^fe is in an offici^position toMe %oi4 |ta|ti)#n^ch vital «atter,%e., my transferfpOsting, in^Sronfeof rfie without askingfrneribr even on^e^as, t%act i sb^d^iSs^M^^^Afs^m^n^daiiaghter is^studym; •i jS Bhubaneswar ((^shah-A^^fe^d'an^^Ring alonffin Kolkataf^al l&ve to | mf^Some othffof aleffce §f my § imfediate therefore^ nolextra Hi strfngth to cope Up wi^gthiS|iti'eh^ndp^S^fnlntaJ. pressure inflictedrby^ these few 9 % JC.
& w & Bl %I dine in a; Five. StSr. Hftel without my famiiyTl Jhocked and?verbally complairi'ed^lDout th%^ncident to the then I/^Shri iSiiylirn1^ Kaiiti Ghosh, retired ADfiT'raiindng, who^ch^ouraged me_tq^lmng the^m%tte/to yqjSr notice. In this Connection, it is^, to b0^^rther*?mentipned that^arliejf during the inchar^ship^Shri S»-GhQsh;\Shri Sujj|^®ll and^mt. jtjata chatterjee (Steno-IlP-then dusted in RT^ftiolk^a) used^to frequently j|fmain absent from branch for long^periodsduring office hnur. 5= Shri Jayanta' Bisy^as sometimes used to accompany them and sometimes he used to remain in the'offiO'e^qnlyatqvGonvey-'them over phone as to what other senior officers and staff in the branch are observing about their long absence. Shri Biswas also used to frequently complete all pending official work of Smt. Chatterjee in order to prevent other senior officers from expressing their displeasure over non-performance of Smt. Chatterjee who could not concentrate on her office duty because of her other involvement.
Lastly, Shri R.S. Prashad (SO) of our branch sent me a very indecent SMS on 14th February, 2015 without my slightest provocation and this SMS ("MY SWEET HEART CHITRA HAPPY VALENTINE DAY") heavily disturbed my family peace. This time also Shri Shyamal Kanti Ghosh (former AD) prevented me from bringing the matter to your knowledge.
Sir, I have, therefore no other option but to submit a written complaint against these persons to you in anticipation of getting respite from such ill- treatment and mental harassment.
UX
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am/ 7 O.A. 350.1339.2018
f-
I shall remain ever grateful to you for your kind necessary action in this regard.
Thanking you Yours faithfully, Sd/-
(Chitralekha Dey) UDC, RTC, Kolkata PIS No. 123986 Dated: 16/9/2015"
Upon a perusal of the complaint, the following is inferred:-
(a) That, the complainafifliad maSe'allegatipns against a number of f <?
fToaded witlpgexdll^hMipa^ell till____ P I:
s (c)ffiat> durihgilfo % I Lsaid !Pr JayantSi Sankar ^^^^kherjee, f ?! Assistant^^te^st^^d^ iU est^pthat^S&.ther
-V,rv* lady stkff be # S5 JCfr' \°Stf °ffiCe ^ feeling u%con&brt^fe in th^ompanv^oMier male^olle^uesr v v y
(d) The cbmplinant coffifSjd| thi®5eha^gr^on tile part of Shri Jayanta Bisw^_ and"Sfek"ar=Mukh'erjee as^Seing instrumental to transfer her out of such office^ " ,
(e) That, the applicant, according to the complainant, is very close to Shri Jayanta Biswas.
(f) That, the applicant had made several indecent proposals to the applicant in 2014 but, although, she had verbally complained about the incident to the then IC, Shri Shyamal Kanti Ghosh, . s !*■ ■ ! •/ m • J s/ m 8 O.A. 350.1339.2018 iJ :■ v, / Shri Ghosh had discouraged her to bring the matter to the notice of the senior authorities.
(g) And, that the applicant and one Smt. Srijata Chatterjee (Steno.
Ill) used to frequently remain absent from office during office hours consequent to which Smt. Sujata Chatteijee often left her work undone.
From the above, what is clearly established is that there was only one incident in 2014 during-wfil'ch 'tfte' complainant had alleged indecent behaviour againstrthe apMi^^iS&J^r^o^objecliqnable proposals.
Although the"'coinpl^maiit refers to several indeceii^^mpo&s, she could only me^ion^fctateing^^^S^^^tetributed to&XppUcant, i namely, abSS; her inel|n^onliahd|hfrJprefereiMte to din#%ut ih, a five ! if m * starhotefeithout hM^a#^faaS \W _
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"Para-6 ^7: "In^4hds circSi£fSi^:e\|it is^io Jto that Shri Sujit
Mondal...... .............. .................. Smt. Chatteijee^whS^could^riot concentrate on her office duty^Hfeeause ofcherviother_involv,emgiff"
In these paragrapfil^Smt.?fcCJhitmlek^^^iey has made a serious charge against Shri Sujit Baran Moiidal, DCIO/Exe, RTC of making highly inappropriate and objectionable statements to her, while she was alone with !. him in die office. The incident itself took place sometime in the month of June, 2014 while a training course for LDC was being conducted, but the complainant could not recall the exact date. However, she remembered that it was during the second fortnight of June, 2016.
Comments: The incident took place sometime in June, 2014. At the time of its occurrence, Smt. Chitralekha Dey and Shri Mondal were alone in the office room, as a class was being conducted in the next room. According to the statement of the complainant, it was late in the afternoon and she immediately rushed out of the office. She informed Shri Shyamai Kanti Ghosh, AD, RTC over phone about the incident in the evening and next day complained to him verbally. He, however, prevented her from informing JD, SIB, Kolkata on the pretext that it would create a bad name for RTC and assured that he would ensure that it would not happen in future. '* 9 O.A. 350.1339.2018 It is important to note that in such incidents, there would obviously be no witness to corroborate the actual statement, gesture or act that transpired between the complainant and the accused. The Committee has to draw inferences from circumstantial evidence following the incident. The fact that favours Smt. Chitralekha Dey's complaint against Shri S.B. Mondal is that most witnesses corroborated the strained official relationship between her and Shri S.B. Mondal. Her only justification for reporting late is that she tolerated the humiliation in order to continue to work in the RTC in the hope that she would be able to move closer to her residence as RTC was to shift to Patalu shortly. The fact of her having communicated the same to Shri Shyamal Kanti Ghosh could not be corroborated, as Shri Ghosh denied knowing anything about the alleged incident. He also stated that he would have advised her to submit the same in writing. He said that he came to know about the incident much later when Smt. Chitralekha Dey complained to his sister when he was hospitalized. Shri Shankar Mukherjee, ASO in his deposition observed that some indirect angry words were usually being exchanged between Smt. Chitralekha Dey and Shri Mondal in the office. Shri Anindya Hore, DCIO, RTC during his deposition, stated that he learnt about th^ misbehavior of Shri Mondal with Smt. Dey on the day after the .incident. H^saidgtha^shprwent to^Shri Shyamal Kanti Ghosh, the then AD, but he didImo^v^?^a%l?ey^31scii|sed. §hri S.K. Lala, AD, RTC stated that "during?^^ hald of 20 was on leave and when he returned^ he fpiiiid %ie atmosphere of RTC qiiife gloomy. Officers were not speaking to bllier coUeaguesfrgehkjasJhey used to earlier. During the first week^ of '^idy.'^O 14, SmgtfCTStr^^^teDey divulge&^o hinrfyhe alleged misbehaviOT^of Shri MorfEHSTshn Ldla aclvis^mbrnot to stay infefficfe alone. He could «*not intervene^^Sie^kasljbhS hifd dfreaSjfepprised t^S matter to Shri ShyamafaCanti Ghdiff/'me tKenlAD, $Tcf Shfijy&ti RanjamegSiha, %D, RTC confiiSS&l that th^Sfrfegatidhs tby'6le|i m^p^^ompl^mt . were truerin enl^rety. He isaidithut Shri StiyLuaT^anS^Ch^shf^die^the^AD, ^TC was ai^^s trying to lavoid^lhe respoi^si^litvfQn^^^^^^XDj^^^s^phygica^ulments. Sa^oj Kr. | Das/peon state^^at haJpi^l^^mB^feffShri.MondS:having said*something | obj^Eonable tolKint'^Cnitrald^^^^^^^ja^ Durga pksad Misfe-ST Ad| RTC I adfetted that Mondah^and |Smt. | Chitralekha (husband^ of iSmt.
1 ChiB^ekha Dey) mirrime^f^af yvas%.ware oPthCTallegations leyeled by his I wde,%s she used tolkeep^hin^updateclj. a^pu^thej^fest development Since he I was^away from Kolka^Che^dvfsedlhel to%ring^Il things to thd^bticejjf her limmediate superiors, Jff I 1 3 '4 Thoji@i tne^^ar^no witnesse "b me actifahstlth erifehaving been made to^Smt. Chitraleklra. D^p' several witnesses f?^tk>^d*abcov\ have ^nfirmed that^an ^didSj^e place in June, 20&^hich^§nfeajred uneasy work environment in .RTC, Kolkata. It is also corroborated^by a lew wi^iesses that Smt. ^Chitralekha* Dey^was^upset-r-aobuf^Shri^Mondal's^feehacfbr and had complained aSbut it totsKri-Shyamal Kand'Chosb, th^tfien AD/Training and In-Charge^of RTCV^Kolkata. Sihce^ Shri Ghbslr did npt infon^his subordinate officials and*Smt. C?utralekha Dey also did notmalre the^cpmplaint in writing to senior officialsf^his incid^h*waa£Otxepprted*mthe p hi channels.
On the official relauSTfehipabetween Srijata Chatteijee, Steno - III, RTC and Shri Mondal, almost all witnesses examined during the course of fact finding inquiry have corroborated that their interactions were seen to be highly objectionable and inappropriate in the office environment. The fact of Shri Jayanta Biswas being supporter of both of them was also corroborated by a few witnesses. Silence of Shri Shyamal Kanti Ghosh on these happenings in the office premises is also proved by witnesses.
It may be noted that Smt. Srijata Chatteijee was transferred from RTC, Kolkata to SIB Hqrs., Kolkata in August, 2014 and was finally relieved in December, 2014. Shri Shyamal Kanti Ghosh retired on March 31, 2015 and Shri Lala took charge as Head of RTC on 1st April, 2015.
Findings: The allegations made against Shri Suiit Baran Mandal were proved to an extent though what exactly transpired between him and Smt Dev could not be proved. While on the one hand the silence of the supervisory officer Shri S.K. Ghosh is not explainable, it is also not /vX 10 O.A. 350.1339.2018 convincing as to why Sint. Dey did not report the matter to senior officers when Shrl S.K. Ghosh did not encourage her to make a written complaint.
The perception that the relationship between Shri S.B. Mondal and Smt. S. Chatteriee was not strictly official was proved by witnesses. Without going into the nature of their relationship it is placed on record that they did not observe official protocol and discipline and were perceived bv many members of the branch to be indulging in inappropriate behavior in the office premises,"
The Fact Finding Committee found as follows:-
(a) That, the complainant could not remember the exact date of the alleged misbehaviour of the applicant except that it was during the 2nd fortnight pf June, 20T4 -(perhaps wrongly noted as ■ ^ -r I fj| f jp-
June,^ih p ^ htihg 4ihiii|^or!^
(b) The^con^lihaiit had averrgd that shr^iad informed Shri ^Sshri Sh^alnalkanti 1 alleged--incident t laclially report ibr Wfic^pon the very^day of the r 4^# X inferesting .....f £ reporting of the "While assessing^the^,,^dings' oFTEe" Compl^jit^Committee, Disciplinary Authority may consider tKlt^thesComplainaritf^s submitted a written narration of the facts, spanning more than a year from March 2014 to September 2014, only when she apprehended that some officers were conspiring to transfer her from RTC. In the interest of protection of women working in official environment fearlessly and independently, it is imperative that they also make it a point not to tolerate any inappropriate behavior for the same of their personal interest regarding postings and work profile. It compromises their Allegations, when made subsequently, as it ascribes a motive to the silence prior to the complaint having been made. It is equally important for women officers that such gestures and overtures are nipped in the bud by making their reservations and views public in the first instance and warning colleagues not to cross the boundaries of decent behaviour at work place. Otherwise, the silence or delay in reporting does cast a shadow on the motive of the complainant subsequently."
Hence the ICC which is set up to look into grievances of women allegedly victimized and sexually harassed, themselves questioned the 11 O.A. 350.1339.2018 motive of the complainant in delayed reporting and only when she felt threatened by a possible transfer.
Section 9(1) of the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 lays down as follows:-
"Complaint of sexual harassment.* (1) Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee, if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident."
Section 9(1) clearly&r*'~"
lays ddwn^hat^aggrievgd^woman employer has to mandatonyfegis^J^^ ^dmplainlfwitlfilkttiree months from thydate. "o^the incid^rta^gid^in^ this ifj^^nt 'in atter, the complainant's dllegation^^^to^e ;egiste^dps^^in Sep ,2014 as / 2^ j that jfas tEjrequisifle^feme" linlW©f iHi^^f'cwi^^nt. The^spo^dents havJ'tri|S o justM' rfes of !Sa^lfS^'"r§l&rred to ! m • '-f incidentSf^but , as i^^ibliitelSno reference tolany tt m 'TB' *W> cidents eSf^venf #Ael sbleSlur^i^ts referrejgjp serils oMn< by the s m. ^ # # & 1 j JSF ^ comflainarit is taken ifr&aGeoukit, t ^ uncU^^ted that sucS^cments a ____ -qaaflCi. m ) mi : . ral \ had n^| have ^ ^ ^ ^\r r' %Si, Hence, ifihed that the corp^iiilf^idl against the \ \ - ^ j? jf y.t.
applicant By^the^cpmplamtot^was violat^no'^die pmVisiqns of '.Section % % 9(1) of Sexual%HarasrSment^^ of 'Wbrnen^a^J^orl^Pl^e (Prevention, Prohibition and Redresslp^Act, 2013.
The applicant in his various representations, namely, those dated 30.8.2016, 2.11.2017, 2.2.2018 as well as 27.4.2018, had repeatedly referred to the fact that the complaint was beyond the period of limitation prescribed under Section 9(1) of Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 as well as Para 7 of the guide on steps for conduct of inquiry in complaint of Sexual Harassment as under DOP&Ts O.M. dated 16.7.2015. The applicant had /
12 OA 350.1339.2018 :$4. correctly pointed out that it was beyond the jurisdiction of the ICC to / ■/ r proceed on such a stale matter in violation of the statutory provisions s ! and the proceedings of the ICC became nonest in the eye of law. Most surprisingly, although addressed to the disciplinary authority, no cognizance was taken of the applicant's representations to this effect nor was any advice issued, to the ICC. The respondents have failed to defend their actions in this regard.
6.2. The complaint made^agairist the appldcant had referred to certain as.'/"
•fi close proximity between, t applicant.
i Sin^'Sfgita Chatterjfc.e* is5iout of jJ i, context. Section 9(ll)lGategbFioMl^^^^'sj^nataja^ 1L ievedfiKpineii may >M\ « 1* if malfe inswriting a domplmnFo^^^ l^^§sSfn^iFa4jiwork placev The act I ** does npflferovide fo^Ehir.d^p * BEX n®L^n^mHe^e, when Sim. Srijita I 1 Cha|teifee.|i Steno, pv** rha( |r ..'IVVjr foil made afiy complaint^of^ sfxualsy I a.
L m harassment agmstfT^app^iftylUsJr^TOio^B^lyiJhe complmnant, being ^tiiir^jt^y%^^aggrieved by si^a^Ch^terxee's Apparent proximity%ith\he ^plicant^It-4s^eciuallv^^rprisir^to jl&te w£y the ICC V x took note of S^thirS^party ISmplaihi agmifet' Srijita Chaflerjee and the jf ' ^ applicant. The actidhs^of the I?CG®m^taking cognizance of a third party complaint, is hence beyond the^ffuarHale that governs their jurisdiction and scope of cognizance.
6.3. The applicant has averred that he had received the copy of the complaint only after the formation of the ICC and this is borne out by Annexure A-2 to the O.A. where the applicant had prayed to the Chairperson of the Complaints Committee for a copy of the complaint.
Herein, we refer to Rule 7 of the Sexual Harassment of Women at Work 13 O.A. 350.1339.2018 Place (Prevention, Prohibition and Redressal) Act, 2013. Rule 7(2) states V that the Complaints Committee is to send a copy of the complaint to the respondent(s) within 7 working days. The complaint was admittedly given to the respondent (applicant in this O.A.) much after the period stipulated in the rules and that too without allowing him to file his reply along with list of documents, names and addresses of witnesses within a period not exceeding 10 working days from the date of receipt of complaint, as provided undef^ule ^(Sj. ^TKissagain, is a- clear violation of the rule prescn^dl^^rtS ^ 6.4 The applicaJiyiaLS also alleged violation Ofs^^gedAe in Section 13(1) of Jne to i m % ;4 s«toe / fi that the ifetit Kolk^ cSulfeil mlu^e^h tm feapphcaftf^(jnatter as r I rs. 1 ! \ and| hence; theJoilt^^^^^^g^pfflliSM-f^bdbdeclared asithe Mead chlE V f j» ( I ^ of lie (flmmittee. 'fie eSiained thm^th^ICC I■ 1 f 11 % BJ 1 wou| t#1011 in tw^^£i|' f Committee and "prima17 ^finghencrfthere areno.Te<^^!t,%inthisresard' /■ 6.5. The%ppHgant'*ifes also^tege^^agtefion M S^SioH«u3(4|^if the Act when the employer^did nor4 aC^tSp'ifn 'tiaC Tecommendat^ns within 60 'V '■ " ■ days of the receipt ofe&he repoft^datedsdi6':97201tifbm instead issued him charge memorandum on 9.10.201Ti.e. after a lapse of more than a year, clearly establishing violation of prescribed time line by the disciplinary authority..
6.6. The Fact Finding investigation concluded in their report dated 28.9.2016 as follows:
"Allegations made against Shri S.B. Mondal have been corroborated to quite an extent by statements of the complainant and the witnesses. Disciplinary authority may take a view, as deemed fit, in this regard."
\ IP 14 OA 350.1339.2018 When we look at the memorandum of charges, however, we find that the statement of imputation of misconduct at Article I reads as follows "Statement of imputation of misconduct on which action is proposed to be taken against Shri S.B. Mandal, DCIO, Bol Kolkata Article -1 That the said Shri S.B. Mandal, DCIO while posted at RTC Kolkata made several indecent proposals to Smt. Chitralekha Dey, UDC during June, 2014. He once asked her, "Whether she caressed her own body part with another body part" and "Whether she would love to dine in a Five Star hotel without her family." She was shocked.and fverbally'icomplained to the then I/C Shri S.K. Ghosh, Retired AD/Training.
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Shri Anindya Hoflj ^liiSiisfiiS^idfe 2?%16 stated that Smt. Dey told him ab9\m^sBe^avior of Shri M^dflJpajji hermext day after the incident.4She SW^nt to Shri S.K. Ghosh, the tSen Jj^rfbut didgnot know what they disci^eciy^ %1:
© / Shri^.K. Lala, ^Sated|before tfie Inte^^Complain^Cbmimttee (ICC) that during the secoridlhalf of 20}l4ilwli^n;ne relShed from leave, he found the aimospWfre of the^C Bdomk, 'ifftejs ^er^lnot^eaking to'^oUcagifes freely r?s th^^sed to. ^^g^^M%|e|#ji^J04&when Sm^gy dmilged »|himihe alleged rgbeh^ibr^^kriMcmdff^^dvi^i her not tifffiay m office "alori^ie did apprisecMe matter to Shifsfk. Ghoshf^e^^^MMaiM^L^--gsm '| i fe^Shri J.R.Winh^^^^^M^^LtatenTent'^^.216 confiriHed. that the |1 aU^ionsinentiret^ f [%Shri S.K. 1 Llit^k^ijr^^ ICC that JMadJLard mabbutlshri Mondal ha^g said sSmythifig oBjec^^able to Smt. Dey^1 J \ ShH there vgs some t^asion StaTiromitd. I Shri i'Sharikar Mi^ieij ee, ASO stated befprethe||^C^ri3tat some indirect an gry wor^s wer^jLisually^being exchangedjbe^veen Smtr D^ and^hri Mandal in the?office!%t ^ 3 j/" Jr Shn^San^Kumar Deyf ^t^I/WTClHusband^rSmt.^Dey) stated before the ICC that'ke^wasatvare of the allegations l^^led^by his^ife and had advised her to bring aiftKings to tfifTiotice^oLher^serffor officer^?^ Thus, by indulgirig ir^nifjaGfeofesexdSl^Harassment of a woman Shri S.B. Mandal, DCIO, violated Rule 3-C of the CCS (Conduct) Rules, 1964.
Article-II That the said Shri S.B. Mandal, DCIO while posted at RTC Kolkata failed to observe proper official decorum and discipline in connection with his relationship with Smt. Srijata Chatterjee, Steno, which was highly inappropriate and objectionable.
As per the report dt. 28.9.16 of the ICC, the relationship between Shri S.B. Mondal and Smt. Chatteijee was not strictly official and they did not observe official protocol and discipline. All witnesses (Smt. Chitralekha Dey, UDC; Anindya Hore, DCIO' S/Shri J.R. Sinha, AD; S.K. Lala, AD; Subrata Baneijee, JIO-I/MT; S.K. Barik, CCWC, Amit Paswan, ASA; Shri R.K. Bera, CCWC, Mohan Das, CCWC; and Subasish Das, Peon) examined during the course of inquiry by ICC corroborated that interactions of Shri Mandal and Smt. dUL tBr-crr.'----*»■ 'V : / Sf sr Y'% 15 O.A. 350.1339.2018 IS ;J k' W'& Chatteijee were highly objectionable and inappropriate in the office environment and they were found indulging in inappropriate behavior in the office premises.
Thus, Shri S.B. Mandal, DCIO exhibited conduct unbecoming of a Govt, servant and violated Rule 3 of the CCS (Conduct) Rules, 1964."
Upon a close reading of such statement of imputation, it is seen that most of the deposition recorded in Article I of the statement is subjective in nature and are largely based on hearsay. Article II of the charges is even more questionable as it is based on a third party complaint, which, under nO' Circumstahce^>the ICC had the jurisdiction to entertain. a* A kr-r-
) II iSl ® mfA '% 0 % 6.7. DOP&£f vidjtyfieir O.M. dated 22.12.20t16feias l^d down that /fcjw enquiries^in c^pbf se^^g^^si|en^^p^be condu^d as^per the ~ fB A' s< prescirf)e<L3^cedure '■*' 'l*is L r r #■ Ig5' i ass' §L St IWefad in th^^^fe * ■jp.
•e cle;^gviolation^J)f Section
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9(1 )|andgSection Rule] ^^Ftffe^Sexual Hai^ssmeht of
Wo4en@Work
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HonTble Apex Couag^^^shera^fegeUQiwgSg % 7 % In^the^qase of violation of a procedur^^^qyfkion%the^position is "(3) this:
procedural oyisions^re generally meant foit^^fording^a^reasdnable and adequate ojrportunity to^the. delinquent offieer^empl^e^. They a^, generally spea^ig, conceived in^his ^^SSrestf^Vi^ation^f ahy ariS eV£0 procedural provisidn^caimbt be smti|t^automa.tically^itiStl the^nqumy^held or order passed. Except calses falling'undfel^K) ribffice'r\io oppmtumjy and ho hearing' categories, cor^lai^ of violation of p|£cetiur£^provision should be examined from^tii_^Bpoint^fwiew;iiOf^prejudice:'viz., \yhemer such violation has prejudiced the deUnquent^ officer/employee in^defratiing himself properly and effectively. If it is found ttiaf^Keshastbeen^sd^pr^udiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. Take a case where there is a provision expressly providing that after the evidence of the employer/Govemment is over, the employee shall be given an opportunity to lead defence in his evidence and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e. whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is \ f ^Br Hr r 16 O.A. 350.1339.2018 only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle".
r In the case of the applicant, fair hearing was denied to him. It is also established that the mandatory provisions have been violated. As urged by the Ld. Counsel to the applicant, when the very initiation of proceedings is bad-in-law, the consequent action by way of initiation of proceeding by issuing chargesheet is also bad-in-law and is not sustainable.
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7. In our considered view, procedurahprovisYohs have been violated % * \ t t f « causing prejudice lo#he^applicant. Hence,'OAfs^fcce.eds^qn merit as the allegations' of^the^applicant^stanS^i^tantiated by!®hts as^vell as in law. The report of thence oateSd 28.9 far as if^laAs to the Jhl_ V \ \ I applicants1, ^he meihomfedum^oficnarg^heet^da^^ 9,10.20%^^ arid the a- \ J.V / I* consequents appointment L4 mn&^3mcer dated 19.1^01^. are 1 hereby qhashed andfcetsaside..
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18. r> The 0A is alloweoikTHlreiwin1 be nb^ldeikoifSEosts.
\ 4 i' ^ is :
■/ zsssS&lissF'ms ■^k v, 4,1- (Bidisha^B^nerjee) Judicial Member SP ■*«