Central Administrative Tribunal - Mumbai
Vinayak K Jadhav vs Health And Family Welfare on 24 February, 2025
1 OA No.57/2023
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION No.57/2023
Date of Decision : 24th February, 2025.
CORAM: HON'BLE SHRI JUSTICE M.G. SEWLIKAR, MEMBER (JUDICIAL)
HON'BLE MR. VARUN SINDHU KUL KAUMUDI, MEMBER (ADMINISTRATIVE)
Shri. Vinayak K. Jadhav, Age 45 years,
Son of Kashinath Jadhav
Working as Sr. Technician-1.
ICMR-NIIH, Mumbai.
Residing at Flat No. 102, Bldg.-U-3.
Vision Woods, Jambhul, PO-Kanhe, Tal-Maval,
Dist. Pune 412 106.
Mobile No. 7745081543. Email: [email protected].
... Applicant
(By Advocate Shri Avachat Abhishek a/w
Shri Siddhant H Deshpande)
Versus
1. Union Of India,
Through the Secretary,
Ministry of Health & Family Welfare,
Nirman Bhavan, New Delhi.
2. The Indian Council of Medical Research,
Through its Director General & Secretary, Department of
Health Research, V. Ramalingswami Bhawan,
Ansari Nagar, New Delhi-110 029.
3. The Director,
ICMR-NIIH, 13th Floor, New Multistoried Bldg.,
K.E.M. Hospital Campus,
Page 1 of 11
2 OA No.57/2023
Parel, Mumbai - 400 012. ... Respondents
(By Advocate Shri A.V. Shinde - R2 and R3 )
(ORAL) ORDER
Per : Shri Justice M.G. Sewlikar, Member (J)
This is an application under Section 19 of the Administrative Tribunals Act whereby the order of the Disciplinary Authority dated 25th April, 2022 retiring the applicant compulsorily and the order dated 23rd December, 2022 passed by the Appellate Authority are challenged.
2. Facts leading to this application are that the applicant at the relevant time was working as Supervisor in National Institute of Immunohaematology, Mumbai 2.1 On 05th October, 2021 a complaint of sexual harassment came to be lodged by 05 female employees (their names are withheld to protect their identity). Some of them were Technician, Technical Assistant, Technical Officer and Scientist 'B'. Page 2 of 11 3 OA No.57/2023 2.2 In the complaint, the inappropriate behavior of the applicant was alleged. This complaint was referred to Internal Committee by the Disciplinary Authority on 05th October, 2021. The Internal Complaint Committee (ICC) issued notice to the applicant. The applicant appeared and filed his reply. The ICC thereafter recorded the statements of the witnesses including the complainant and the male witnesses. The ICC submitted report to the Disciplinary Authority holding the applicant guilty and made the following recommendations:
"1. That Mr. Vinayak Jadhav be suspended from work forthwith for a period of at least one years;
2. Mr. Vinayak Jadhav be transferred to some other Institute with strict warning to refrain him from repeating such offence against female staff;
3. Other necessary punishment permissible as per ICMR Rules under the facts of present case."
2.3 The Disciplinary Authority, after reading the report, came to the conclusion that the applicant had sexually harassed the complainants and, therefore, imposed the punishment of compulsory retirement vide order dated 25th April, 2022. Page 3 of 11 4 OA No.57/2023 2.4 The applicant preferred an Appeal against the said order to the Appellate Authority. In the Appeal, the applicant raised the issue of denial of opportunity to the applicant to cross- examine the witnesses. The Appellate Authority dismissed the Appeal and confirmed the sentence imposed by the Disciplinary Authority. These orders are impugned in this OA.
3. The Respondents filed their reply contending therein that the applicant has admitted the charges levelled against him and expressed his desire to settle the matter. However, the Committee did not find it appropriate to settle the matter and proceeded with holding of the inquiry. Accordingly, the inquiry was held. The applicant was given a fair chance of hearing. Principles of natural justice were followed in letter and spirit and, therefore, the order passed by the Disciplinary Authority is proper and confirmation of the order by the Appellate Authority is also proper.
4. We have heard learned counsel for the applicant and learned counsel for the respondents.
Page 4 of 11 5 OA No.57/2023
5. Learned counsel for the applicant submits that the applicant was not afforded any opportunity to cross-examine the witnesses. He submits that there is no whisper either in the report of the ICC or in the proceedings sheets that the female witnesses were not comfortable in facing the cross-examination by the applicant. Therefore, it was the bounden duty of the ICC to afford opportunity to the applicant to cross-examine the witnesses. This opportunity has been denied to him and, therefore, the principles of natural justice have not been followed. On this ground alone, the orders of the Disciplinary Authority and the Appellate Authority need to be set side.
6. Learned counsel for the respondents submits that the applicant admitted before the ICC the charges levelled against him and, therefore, question of giving opportunity to the applicant of cross-examination of the witnesses did not arise. He further submits that the applicant did not engage any female Defence Assistant. Therefore, the question of granting him opportunity to Page 5 of 11 6 OA No.57/2023 cross-examine did not arise. He further submits that in the written brief filed before the Inquiry Officer, he did not mention that the applicant was not afforded the opportunity to cross examine the witnesses. Therefore, he is not entitled to raise this issue in the Appeal for the first time. In reply, learned counsel for the applicant submits that the applicant was not aware of the witnesses examined by the ICC as copies of statements of witnesses were not supplied to him. He came to know for the first time when the order of compulsory retirement was passed.
7. We have given thoughtful consideration to the submissions made by the counsels for their respective parties.
8. The Office Memorandum No.11013/3/2009-Estt.(A) dated 21st July, 2009 specifically mentions that as far as possible ICC should follow the provisions of Rule 14 of the CCS (CCA) Rules 1965. The CCS(CCA) Rules 1965 contemplate cross examination of the witnesses. The Learned counsel for the applicant placed reliance on the case of Delhi University & Anr. Vs. Bidyug Page 6 of 11 7 OA No.57/2023 Chakraborty & Ors. and others, Special Leave to Appeal (Civil) Nos(s) 23060/2009 decided on 12th January, 2010 in which following observations are made:
"After hearing the learned counsel for the parties we are of the opinion that the respondents are entitled to a hearing and to cross-examine the witnesses produced by the University. We further direct that as this appears to be a case of sexual harassment the identity of the witnesses need not be revealed to the respondent or his counsel and for this purpose the respondent would be entitled to submit the questionnaire which will be put to the witnesses for their answers in writing. Mr. Rao states that the statements made by the witnesses without their names will be supplied to the respondents within two weeks from today. The said documents will also be supplied to Ms. Binu Tamta, the Advocate-Commissioner who is being appointed by this court for the purpose of getting answers to the questions to be supplied by the respondents. Ms. Tamta will ensure the anonymity of the witnesses.
Mr. Rao, further states that the respondents would be entitled to produce their entire defence evidence in addition to the aforesaid questionnaire and that all annexures which have not been supplied with the enquiry committee will also be handed over to the respondent without revealing the identity of the witnesses.
We request Ms. Tamta to complete the entire proceedings as soon as possible, preferably within two months from today. She will be paid a sum of Rs.25,000/- as her fee by the petitioner No.1.Page 7 of 11 8 OA No.57/2023
The special leave petition is disposed of accordingly."
9. From these observations, it is clear that cross- examination of the witnesses must be permitted.
10. We find from the records that the ICC did not inform the applicant about the date of examination of the witnesses. Therefore, learned counsel for the applicant is right in contending that the applicant was not aware of the examination of the witnesses being concluded by the ICC. From the record, it appears that the applicant was not aware even at the time of filing his written brief that the witnesses were examined by the ICC because copies of the statements of witnesses were not provided to the applicant. Learned counsel for the applicant could not place on record anything to show that copies of the statements of witnesses were provided to the applicant. If the ICC had provided the statements of witnesses to the applicant, the submission of learned counsel for the respondents would have gained some weight. In the absence of anything to show that the applicant was aware of the Page 8 of 11 9 OA No.57/2023 examination of the witnesses by the ICC, it does not lie in the mouth of the respondents to contend that he did not raise any objection in his written brief.
11. So far as the contention of the respondents that the applicant had admitted the charges levelled against him is concerned, it is borne out from the record that the ICC did not call upon the complainants to settle the matter amicably. The ICC did not think it appropriate to find out from the complainants whether they were ready to settle the matter or not. The ICC preferred to proceed with the inquiry. In that eventuality, ICC ought to have provided the opportunity to cross-examine the witnesses. Therefore, this submission is rejected.
12. It is pertinent to note that the Appellate Authority has observed that there were male witnesses also who supported the complainants. In that case, there was no reason for the ICC to deny the opportunity to cross-examine the male witnesses. In these circumstances, it has to be said that the ICC failed in following the Page 9 of 11 10 OA No.57/2023 principles of natural justice. Cross-examination is a tool in the hands of the delinquent for ascertainment of truth. It is an integral part of principles of natural justice. If this opportunity is denied, it has to be said that the principles of natural justice are the victim. In these circumstances, the order of the Appellate Authority and the Disciplinary Authority have to be set aside.
13. In this view of the matter, the orders of the Appellate Authority and the Disciplinary Authority are set aside. Inquiry is remanded to the ICC. ICC to determine whether the complainants are ready to face the cross-examination by the applicant. If they are not, the ICC shall ask the applicant to give the questionnaire in writing and the female witnesses be asked to answer the questionnaire.
14. If the complainants are prepared for cross-examination by regular modes, the regular procedure of cross-examination be followed. The ICC shall give the opportunity to the applicant to cross- examine the male witnesses in the regular manner. The ICC shall Page 10 of 11 11 OA No.57/2023 follow the regular procedure i.e. giving opportunity of written brief to the prosecution and the applicant. This exercise shall be done within a period of eight weeks from the date of receipt of a certified copy of this order. The Disciplinary Authority thereafter shall pass the appropriate order within two weeks. All contentions are expressly kept open for both the parties.
15. With these directions, the OA is allowed. Pending MAs, if any stand closed. No costs.
(Varun Sindhu Kul Kaumudi) (Justice M.G. Sewlikar) Member (A) Member (J) dm. Digitally signed by Deepti Ganesh Munarshi DN: C=IN, O=Personal, OID.2.5.4.65= Deepti dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49a5 91f4547843867fc06f0095732d99, Ganesh PostalCode=400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f47 1e3c55c542947568cc8f7d6a4f4, CN= Deepti Ganesh Munarshi Munarshi Reason: I am the author of this document Location: Date: 2025.02.27 17:33:04+05'30' Foxit PDF Reader Version: 2024.3.0 Page 11 of 11