Central Administrative Tribunal - Delhi
Ravinder Kumar Luthra vs Election Commission Of India on 5 January, 2024
1
O.A. No. 31/2024
(C-II, item - 11)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 31/2024
M.A. No. 40/2024
This the 05th day of January, 2024
Hon'ble Mr. R. N. Singh, Member (J)
Hon'ble Mr. Tarun Shridhar, Member (A)
Sh. Ravinder Kumar Luthra, Section Officer, GP „B‟,
(Aged about 53 years),
S/o Sh. Raghunath Rai Luthra,
R/o 2838-39, Ashok Street,
Mori Gate, Delhi - 110006.
...Applicant
(By Advocate: Mr. M. D. Jangra)
Versus
1. Election Commission of India,
Through its Secretary,
Election Commission of India,
Nirvachan Sadan, Ashoka Road,
New Delhi - 110001.
2. The Deputy Election Commissioner,
(Administration & Establishment),
Election Commission of India,
Nirvachan Sadan, Ashoka Road,
New Delhi - 110001.
3. Internal Complainants Committee through its,
Director/Chairperson,
Internal Complainants Committee (ICC),
Room No. 115 A, Election Commission of India,
Ashoka Road,
New Delhi - 110001.
...Respondents
2
O.A. No. 31/2024
(C-II, item - 11)
ORDER (ORAL)
By Hon'ble Mr. Tarun Shridhar, Member (A):
The applicant is holding the post of Section Officer in the Election Commission of India and is aggrieved by an enquiry initiated against him for certain allegations of sexual harassment made by a woman employee of the organization. The enquiry into the allegations is yet to commence and at this stage the applicant has only been issued a notice by the Committee for redressal of sexual harassment of women employees to appear before it and furnish his reply. Notice dated 13.10.2023 was issued to the applicant to this effect followed by a subsequent notice dated 20.10.2023 and, thereafter, taking into consideration the preliminary reply submitted by him raising certain legal issues, an order dated 26.12.2023 has been issued by the Director of Internal Complaints Committee (ICC). The applicant agitates this action of the respondents in the instant OA seeking the following reliefs:
"a) To quash and set aside the impugned notices dated 13.10.2023 (received on 16.10.2023) (Annexure A-1), unsigned notice dated 20.10.2023 (Annexure A-1A) and impugned order dated 26.12.2023(Annexure A-2) passed by respondent no. 3 since the complaints of the complainants are time barred as prescribed under Section 9(1) of The Sexual Harassment of Women at Workplace (Prevention. Prohibition and Redressal) Act, 2013 and against principles of natural justice.
b) To declare the impugned notice dated 13.10.2023.
20.10.2023 and impugned order dated 26.12.2023 3 O.A. No. 31/2024 (C-II, item - 11) arbitrary, illegal, malafide, unjust and violative of principles of natural justice.
c) to allow the OA with cost.
d) Pass such other and/or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
2. At the admission stage itself, Mr. M. D. Jangra, learned counsel for the applicant has extensively taken us through the entire background and history of the case from the applicant‟s perspective and has submitted that the applicant has been an active whistleblower who has highlighted various acts of corruption and irregularity in the organisation, and the entire gamut of facts and circumstances of the case, supported by the documents annexed with the OA, would make it abundantly clear that the complaints and allegations against the applicant are nothing more than a counterblast to his disclosure of various acts of corruption and irregularities in the organization. He has emphasized that the applicant is an active whistleblower and in terms of Whistle Blowers Protection Act, 2014, he should have, in fact, been offered protection against victimisation as section 11 of the said Act provides for such protection. However, rather than granting protection to him under the provisions of Section 11 of Whistle Blowers Protection Act, 2014, the 4 O.A. No. 31/2024 (C-II, item - 11) respondents have, as a counterblast, started the instant proceedings against the applicant by way of an enquiry by ICC on charges of sexual harassment. On this sole ground itself, the entire proceeding deserves to be quashed and set aside, learned counsel argues.
3. He goes on to draw our attention to the Section 9 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 stating that limitation of three months has been clearly prescribed in the said section and no compliant which is made beyond three months from the date of the incident can be entertained unless reason for filing the same are recorded in writing with enough justification. Since the enquiry against the applicant has been initiated for incidents dating back to the year 2011-12, the whole issue is hopelessly time barred and in terms of Section 9, these proceedings could not have been initiated against the applicant. Learned counsel also draws attention to violation of the elementary principles of natural justice in the instant matter and submits that the applicant has not been afforded reasonable and adequate opportunity before passing the order dated 26.12.2023 and none of the objections which the applicant has raised with respect to 5 O.A. No. 31/2024 (C-II, item - 11) the proceedings have been attended to in the said order. Though, he point out, there is a reference to objections and the issues flagged by him, no reasoning has been given in the said order and it fails to qualify as a reasoned order.
4. Learned counsel points out certain other lacunae in the entire proceedings, especially to certain complaints and dates of orders which do not exist orhave not been provided to the applicant. How can the applicant lead his defence and participate in the enquiry in the absence of such documents, he argues. He specifically draws attention to the notice dated 13.10.2023, which makes a mentions of complaints dated 11.09.2023 and supplementary complaint dated 06.10.2023 whereas the order dated 26.12.2023 makes a mention of the complaint dated 24.03.2023 and another dated 31.08.2023. Neither of these complaints find any mention in the notice issued to the applicant, nor have they been provided to him. Hence, even on account of these lacunae, the present proceedings do not sustain, he adds.
5. Learned counsel also points out towards one of the proceedings of the ICC dated 06.10.2023 highlighting that it appears that Committee is leading the complainant into 6 O.A. No. 31/2024 (C-II, item - 11) filing complaints as it has been recorded in the proceeding that the complainant was asked to submit a supplementary complaint. Thus, bias is apparent in this matter, he argues. He draws strength from a judgment of Hon‟ble High Court of Punjab and Haryana at Chandigarh in a bunch of CWPs, namely, 32707-2019, 32708-2019 & 32712-2019 which were decided by a common order dated 22.03.2021. He submits that the Hon‟ble High Court had categorically held that statutory provisions of limitation as set forth in The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 are non-negotiable and if the complaint is made beyond the time prescribed the same cannot be entertained, least to say, enquired into.
6. The OA has come up today for the first time and is listed for admission. Mr. Jangra has argued the OA at length, and, on account of the subject of the OA and also the prayer for interim relief made therein, we too have heard him exhaustively for considerable time. We have also meticulously recorded all the arguments and submissions made by him. In addition, we have given a very careful reading to the documents which have been placed on record, and repeated reading to the specific ones to which the learned counsel has drawn our attention to. 7 O.A. No. 31/2024 (C-II, item - 11)
7. The first "Notice" impugned in the OA is dated 13.10.2023. We reproduce itverbatim:
"SUBJECT IN RE: COMPLAINT UNDER PREVENTION OF SEXUAL HARASSMENT ACT, 2013 FILED BY MS, KAVITA WORKING AS ASO IN THE ELECTION COMMISSION OF INDIA.
Dear Mr. Luthra, This is to inform you that the internal complaints committee of ECI has received the above-said complaint against you on 11.09.2023 and a supplementary complaint on 06.10.2023.
In terms of the above, copies of the said complaint along with the statement of the complainant are being sent to you. We look forward to receiving your reply, articulating the reasons for which this complaint should not be duly considered.
You are directed to file the reply within 12 days of receipt of this notice. You are further directed to appear personally on 25.10.2023 before the Internal Committee at 4 PM with your reply."
8. We note that the applicant has been addressed as "Dear Mr. Luthra" and the Chairperson of the ICC very politely writes "We look forward to receiving your reply". There is an allegation against the applicant which the ICC is obliged to enquire into but the notice which is impugned is drafted in a language which is polite and protects the dignity of the applicant. The second notice impugned is dated 20.10.2023, in which also the reference to him is "Dear Mr. Luthra" and points out that since he has so far not filed any reply, another opportunity of 12 days is being granted to him. Thereafter, the third impugned 8 O.A. No. 31/2024 (C-II, item - 11) communication is an order dated 26.12.2023. This order, it is quite obvious, deals with the various legal issues raised by the applicant qua the proceedings which have been initiated by the ICC. At the outset, this order states "The ICC is not going into the merits of the case as yet". This out-rightly establishes the objectivity and fairness of the ICC. Thereafter, it goes on to address the objections of the applicants one by one. Most of them have been raised by the learned counsel for the applicant today during the course of the arguments. The issue of limitation has also been addressed by the ICC in this order making a clear mention that not only is it a case of continuous harassment over a long period of time and hence not subject to limitation, but complaints have been received regarding incidents as late as 31.08.2023 and 29.09.2023. After addressing this issue, this order again in conclusion says that respondent is directed to file his formal reply to the complaint as stated above. What greater natural justice could have been done, we fail to understand.
9. We are not going in to the merit of the allegations made by the complainant or into the merits of the defence of the respondent. We record that the ICC has been very reasonable by categorically recording that as yet they shall 9 O.A. No. 31/2024 (C-II, item - 11) not examine the merits of the case and offered a further opportunity to the applicant to file a reply; he is yet to do so. The responsibility at this juncture, squarely rests upon his shoulders.
10. We have no doubt in holding that the applicant has rushed to this Tribunal prematurely. Learned counsel for the applicant draws our attention to representations the applicant has made to the disciplinary authority highlighting unfairness in the proceedings but the disciplinary authority has not taken any action on the same. We have gone through these communications. In fact, in these communications, the applicant is reiterating, time and again, that being a whistleblower, he is being victimised and he deserves protection. ICC in its order dated 26.12.2023, very fairly and adequately, dealt with this issue and to our considered view, the provisions of Whistle Blowers Protection Act, 2014 cannot act as an impediment to enquire into the complaints under The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Whether the complaints against the applicant are counterblast or not is to be determined at an appropriate time by ICC and the 10 O.A. No. 31/2024 (C-II, item - 11) said Committee is yet to enquire into the veracity of the allegations and merits of the defence of the respondent.
11. In fact, the matter is at a preliminary stage of an enquiry which, in fact is yet to commence. The proceedings under The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 are deemed proceedings under Rule 14 of CCS, CCA Rules, 1965 and the elaborate procedure therein. There is an allegation which has been conveyed to the applicant and an opportunity has been given to him to lead his defence and furnish his reply. He is yet to do so. The documents placed on record show that adequate and reasonable opportunity has been provided to him. No doubt the applicant is at liberty to raise legal issues and he has done the same, but we also note that the competent authority has dealt with those objections carefully and passed an appropriate order dated 26.12.2023. The applicant and his learned counsel may have serious reservation with respect to the quality of this order but after going through it time and again, we have no doubt that this order fully qualifies to be reasoned and speaking order as it addresses all the issues raised by the applicant in a fair and balanced manner. 11 O.A. No. 31/2024 (C-II, item - 11)
12. We have also gone through the judgment of the Hon‟ble High Court of Punjab and Haryana at Chandigarh upon which much reliance has been placed by the learned counsel during the course of the arguments. There are very glaring distinguishing feature in the facts and circumstances before the Hon‟ble High Court and the facts of this case. In the matter before the Hon‟ble High Court three CWPs were clubbed together. The proceedings therein before the Local Committee were stayed and no other issue, except the issue of limitation has been addressed. Further, there had been full and final settlement between the parties, which is not the case here.
13. Before concluding, we would like to categorically record that there is not even a whisper of any adverse observation by the respondents much less any adverse order against the applicant. He is being addressed in a polite language; he has been shown indulgence and offered reasonable opportunity to submit his side of story by furnishing an appropriate reply. On his failure to do so, he is again being politely requested to do so. The ICC has categorically stated that at this stage, they are not going into the merits of the allegations against the applicant. 12 O.A. No. 31/2024 (C-II, item - 11)
14. We too are not making any comment upon the allegations, however, a reference must be made that the allegations against the applicant are of sexual harassment of women at workplace, and they are of a grave and serious nature. There is no reservation that they need to be into enquired into seriously, albeit strictly within the ambit of the rules and in adherence to the principles of natural justice. We do not find that any of these principles are violated even to a bare minimum extent.
15. The applicant, as argued by his learned counsel, repeatedly flaunts his self proclaimed status of a whistle blower and demands immunity from any enquiry as a matter of right. We are certainly not inclined to offer him this privilege and fail to understand as to why he should shy away from proving his innocence.
16. Against the background of what has been elaborately detailed above, we have pointed out to learned counsel that in view of the facts as have emerged from the documents and during the course of the arguments, we have no doubt in holding that the present OA is not only misplaced but also amounts to gross abuse of the process of law and wastage of the precious time of this Court. Accordingly, we have offered a liberty to the learned counsel for the 13 O.A. No. 31/2024 (C-II, item - 11) applicant to withdraw the instant OA and seek recourse to an appropriate alternative in accordance with law. However, learned counsel, on instructions, has brushed aside this suggestion and insisted that the OA being meritorious be adjudicated as such.
17. We have given a very detailed, extensive and patient hearing to the learned counsel and duly recorded the same honestly. We have no hesitation in dismissing this OA out- rightly and further imposing a cost of Rs. 25,000/- upon the applicant for blatant abuse of the process of law. The said cost shall be recovered from the applicant by the respondents and deposited in the appropriate Receipt Head of the Government.
18. Pending MA also stands disposed of. No costs.
(Tarun Shridhar) (R. N. Singh)
Member (A) Member (J)
/as/