Himachal Pradesh High Court
Irbn Battalian vs Comptroller And Auditor on 17 June, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 17th DAY OF JUNE, 2022
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO. 4363 OF 2020
Between:
SHAMSHER SINGH,
S/O LATE SH. HET RAM,
R/O VPO MANDHOL,
TEHSIL JUBBAL,
DISTRICT SHIMLA,
HP, AT PRESENT ADDITIONAL SP 1ST
IRBN BATTALIAN, BANGARH
....PETITIONER
(BY MR. SANJEEV BHUSHAN SENIOR
ADVOCATE WITH MR. RAJESH KUMAR
AND MR. RAKESH CHAUHAN,
ADVOCATES)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH PRINCIPAL SECRETARY
(HOME) TO THE GOVERNMENT OF
HIMACHAL PRADESH
2. DIRECTOR GENERAL OF POLICE, H.P. SHIMLA.
3. DEPUTY INSPECTOR GENERAL
OF POLICE, TTR H.P. SHIMLA CUM
CHAIRMAN INTERNAL COMMITTEE OF
PHQ, SHIMLA-02
....RESPONDENTS
(BY MR. SUDHIR BHATNAGAR
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2
ADDITIONAL ADVOCATE GENERAL)
.
Whether approved for reporting?. Yes.
This petition coming on for orders this day, the Court passed the following:
ORDER
Being aggrieved and dissatisfied with order dated 18.12.2017 (Annexure-11), whereby Principal Secretary (Home) to the Government of Himachal Pradesh, remanded the inquiry back to the Complaint Committee on Sexual Harassment r to further inquire into the matter in accordance with the provisions of Rule 14 of the CCS(CCA) Rules, 1965 and memorandum dated 20.4.2018 (Annexure A-13) issued by the Internal Complaint Committee, headed by Deputy Inspector General of Police, TTR, HP Shimla-2, petitioner approached the erstwhile HP State Administrative Tribunal by way of OA No. 2464 of 2018, which now on account of its abolishment stands transferred to this Court for adjudication, praying therein for following main reliefs:
"That the impugned orders Annexures A-10, A-11 and A-13 may very kindly be quashed and set aside and further the entire proceedings with respect to the enquiry may very kindly be quashed and set-aside."
2. For having bird's eye view, certain undisputed facts as emerge from the pleadings adduced on record by the respective parties are that an ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 3 anonymous complaint filed by one lady constable of First Reserved .
Battalion Junga, District Shimla, leveling therein serious allegation of sexual harassment against the petitioner, who at that relevant time was working as Additional Superintendent of Police, First Battalion Junga, came to be addressed to Director General of Police (Annexure A-1). In the aforesaid complaint, precisely, the allegation against the petitioner was that some lady constable posted at First Battalion Junga was being harassed sexually and mentally by the petitioner. Director General of Police having taken note of contents of the complaint as detailed herein above, constituted a Fact Finding Committee to ascertain the correctness of the allegations contained in the anonymous complaint, however, the allegations were not found correct and as such, no further action, if any, was taken by the office of Director General of Police. But since complainant had also addressed the aforesaid complaint to other authorities including the Principal Secretary (Home) to the Government of Himachal Pradesh, matter subsequently came to be inquired by respondent No.3, who vide notice/communication dated 16.9.2016 (Annexure A-2) directed the petitioner to attend her office in connection with inquiry on 19.9.2016.
Interestingly, respondent No.3, before issuing aforesaid notice dated 16.9.2016, to the petitioner, had already recorded the statements of the ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 4 lady constables posted at First Reserved Battalion Junga (Annexure A-3) as .
is evident from the date mentioned by the witnesses under their signatures.
Petitioner apart from presenting himself before respondent No.3 filed a detailed reply (Annexure A-4) to the complaint lodged against him, specifically refuting therein allegations contained in the anonymous complaint (A-1). Vide communication dated 28.9.2016 (Annexure A-5) respondent No.3 after having received reply filed by the petitioner afforded an opportunity to the petitioner to lead evidence, if any, in defence on 30.9.2016. On 30.9.2016, statement of defence witnesses, ten in number, was recorded jointly by respondent No.3 (Annexure A-7). Respondent No.3 after having recorded statement of defence witnesses and without affording an opportunity of cross-examination to the petitioner proceeded to submit final report of inquiry against the petitioner recommending therein action under the conduct rules and ethics of the police department.
3. Being aggrieved and dissatisfied with aforesaid inquiry report submitted by the Sexual Harassment Committee, petitioner filed a detailed representation to the Principal Secretary (Home) to the Government of Himachal Pradesh (Annexure A-9). In the aforesaid representation, petitioner besides highlighting the number of procedural irregularities committed by the Sexual Harassment Committee, raised specific issue with ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 5 regard to non-compliance of provisions contained under CCS (CCA) Rules, .
1965 as also the provisions contained under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (in short the "Sexual Harassment Act"). Petitioner claimed that though at the first instance, no inquiry could have been initiated on the basis of anonymous complaint and thereafter further inquiry, if any, was to be conducted strictly in terms of provisions contained under Section 9 of the Sexual Harassment Act and Section 14 of the CCS(CCA) Rules, 1965.
Having taken note of the grounds raised in the representation as detailed herein above, respondent No.1 i.e. Principal Secretary (Home) to the Government of Himachal Pradesh, vide order dated 21.5.2017 (Annexure A-
10), remanded the case back to the Inquiry Committee with direction to further inquire into the matter in accordance with the Rule 14 of CCS(CCA) Rules, 1965. However, interestingly, the Sexual Harassment Committee headed by respondent No.3 again failed to follow the procedure as prescribed under Rule 14 CCS(CCA) Rules, 1965 Rules and Sections 9, 10 and 11 of the Sexual Harassment Act and again submitted the same report as was submitted at the first instance. Petitioner being aggrieved with the aforesaid inquiry again filed representation to the Principal Secretary (Home) to the Government of Himachal Pradesh, who after being convinced ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 6 that alleged allegation against the petitioner as contained in the .
anonymous complaint (Annexure A-1) could only be decided in accordance with the provisions of Rule 14 of CCS(CCA) Rules, 1965, again remanded the inquiry back to the Complaint Committee in terms of Rule 15(1) of CCS(CCA) Rules, 1965 with direction to do the needful in terms of provisions contained in Rule 14 of CCS(CCA) Rules, 1965. After passing of the aforesaid remand order dated 18.12.2017 (Annexure -12), respondent No.3 again issued notice dated 10.4.2018, to the petitioner, asking him to attend her office on 20.4.2018 for cross-examination of defence witnesses on the allegations leveled against him. Vide memorandum dated 20.4.2018 (Annexure A-13), following allegations came to be leveled against the petitioner by respondent No.3, in terms of anonymous complaint by one lady constable posted at 1st Battalion Junga:
"1.The behaviour of charged officer remained undesirable and against the requirements of an officer in his senior position.
2.Charged Officer has overstepped his mandate of a disciplinary authority by making personal remarks which can be construed to be harassing which cannot in any way be understood as words of encouragement or goodwill.
3.Charged officer in one or another pretext calls the lady officials to his office and makes objectionable and ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 7 embarrassing comments thereby causing mental & sexual .
harassment to the lady officials at their work place.
4. Whenever lady officials visit his office, he asks for their mobile Nos. and says that he will speak during the night."
4. Before further action, if any, could be taken by respondent No.3, pursuant to remand order dated 18.12.2017, passed by the Principal Secretary (Home) to the Government of Himachal Pradesh, (Annexure A-
11), and memorandum
r dated 20.4.2018 (Annexure-13), petitioner
approached the erstwhile HP State Administrative Tribunal by way of Original Application, praying therein for reliefs as have been reproduced herein above. Vide order dated 7.5.2018, the erstwhile Tribunal extended the time for filing reply to the petitioner to the memorandum dated 20.4.2018 (Annexure A-13). Vide order dated 20.6.2018, though learned erstwhile Tribunal permitted respondent No.3 to go ahead with the inquiry proceedings in terms of memorandum dated 20.4.2018 (Annexure-13), but ordered that final order shall not be pronounced till further orders.
5. As per instructions imparted to the learned Additional Advocate General, though inquiry is complete but final order can only be passed once permitted by this court. Mr. Sudhir Bhatnagar, learned Additional Advocate General argued that since fresh inquiry report is yet to ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 8 be filed by the inquiry officer, present petition is not maintainable being .
premature.
6. On the other hand, Mr. Sanjeev Bhushan, learned Senior Counsel representing the petitioner vehemently argued that once it stands duly proved on record that no action, if any, could be initiated against the petitioner on the basis of anonymous complaint, inquiry report, if any, submitted by respondent No.3 being head of Sexual Harassment Committee is of no consequence and if allowed to sustain would be contrary to the provisions contained under the Sexual Harassment Act.
Mr. Bhushan further argued that petitioner is aggrieved of order dated 18.12.2017 passed by the Principal Secretary (Home) to the Government of Himachal Pradesh ( A-11), for the reason that once aforesaid authority was convinced and satisfied that respondent No.3 has not conducted the inquiry in terms of the provisions contained under the Sexual Harassment Act as well as Rule 14 of CCS(CCA) Rules, 1965, he ought to have quashed the inquiry report as well as complaint, especially when on two occasions, inquiry officer failed to conduct the inquiry in the manner it was asked to do by the Principal Secretary (Home) vide order dated 27.5.2017.
7. Mr. Sudhir Bhatnagar, learned Additional Advocate General while refuting the aforesaid submissions made on behalf of the petitioner ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 9 contended that procedural irregularities, if any, committed by respondent .
No.3 while furnishing inquiry report were duly rectified/removed by the inquiry officer while conducting fresh inquiry and as such, it cannot be said that fresh inquiry was not conducted in terms of the provisions contained in Section 14 of the CCS (CCA) Rules, 1965.
8. Having heard learned counsel for the parties and perused material available on record, this court finds that facts of the case as noticed herein above are not in dispute, rather stand duly admitted by the respondents in their reply. It is not in dispute that complaint, on the basis of which, inquiry proceedings came to be initiated against the petitioner, was not signed by anyone, rather same was anonymous. First question which needs to be determined in the instant proceedings is "whether anonymous complaint containing allegations of sexual and mental harassment at the work place could be probed or not?" To explore answer to the aforesaid question this Court finds it necessary to take note of Section 9 of the Sexual Harassment Act which reads as under:
"9. 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:::: Downloaded on - 24/12/2022 09:26:51 :::CIS 10
Provided that where such complaint cannot be made in .
writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing:
Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit not exceeding three months , if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period. (2) Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section."
9. Very initial lines of the aforesaid Section states that any aggrieved woman may make in writing a complaint of sexual harassment at work place to the Internal Committee, if so constituted or the Local Committee in case it is not so constituted within three months from the date of incident and in case of serious of incidents, within a period of three months from the date of the last incident.
10. Aggrieved woman has been defined under Section 2 (a), which reads as under
"2 (a) "aggrieved woman" means-
i.in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 11 subjected to any act of sexual harassment by the .
respondent;
ii. in relation to a dwel1ing place or house, a woman of any age who is employed in such a dwelling place or house;"
11. As per the aforesaid provision, "aggrieved woman" would mean a woman of any age, whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent. In the case at hand, complaint (Annexure A-1) was anonymous and as such, now question arises, whether there was any requirement, if any for Sexual Harassment Committee of the department to take cognizance of the same or not. As has been observed herein above, action, if any, in terms of Section 9 of the Act could only be taken on the complaint of Sexual harassment made by any aggrieved woman. Since in the case at hand, there was no aggrieved woman, rather anonymous complaint containing allegations of sexual harassment of some of lady constables in First Reserved Battalion Junga were leveled, there was no occasion at all for the Director General of Police or Principal Secretary (Home) to the Government of Himachal Pradesh, to take cognizance of the same. However, Interestingly, in the case at hand, though Director General of Police at the first instance constituted a Fact Finding Committee headed by Ms. Bindu Rana, Commandant, 6th IRB Battalion, Gariwala, but since nothing ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 12 emerged against the petitioner, no action was taken. However subsequently .
on the directions of Principal Secretary (Home) to the Government of Himachal Pradesh, matter came to be placed before the Sexual Harassment Committee headed by respondent No.3, who vide notice dated 16.9.2016, directed the petitioner to attend the office in connection with the inquiry on 19.9.2016, but Interestingly, by that time, Committee headed by respondent No.3 had already recorded the statements of ten lady constables working in First Reserved Battalion Junga as is evident from their statements rplaced on record as Annexure A-3, signed on 23/27.8.2016. Petitioner in compliance to aforesaid notice issued by respondent No.3 submitted reply (Annexure A-4), specifically denying the allegations against him. In reply, petitioner specifically stated that inquiry, if any, against him is required to be conducted in terms of provisions contained under Rule 14 of the CCS(CCA) Rules, wherein before initiation of inquiry, he ought to have been issued memorandum of charge and thereafter, opportunity to cross-examine the witnesses examined in support of the complaint and thereafter to lead evidence in defence. Though respondent No.3 vide communication dated 28.9.2016 (Annexure A-5) while acknowledging reply filed by the petitioner to notice dated 16.9.2016, directed the petitioner to cause presence of witnesses, if any, in defence ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 13 before the Committee on 30.9.2019, but again failed to provide an .
opportunity to the petitioner to cross-examination the witnesses adduced in support of the complaint. Even at the stage of recording the statements of defence witnesses, glaring mistake came to be committed by the Committee headed by respondent No.3 because it recorded one joint statement of ten witnesses in defence adduced on record by the petitioner as is evident from Annexure A-6. It is pertinent to take note of the fact that at this stage, petitioner procured copies of the statements made by ten lady constables in support of the complaint dated 23/27.8.2016, wherein for the first time, signatures of Members of Sexual Harassment Committee were appended with remarks "RO&AC", to demonstrate that same were recorded in the presence of the complainant, which fact is otherwise totally contrary to the record. For the first time, notice came to be issued to the petitioner on 16.9.2016 (Annexure A-2). If it is so, it stands duly established on record that statements of ten lady witnesses adduced in support of the complaint recorded on 23.8.2016 were recorded in the absence of the petitioner and other Committee Members. Copies of the statements made by ten lady constables in support of the complaint (Annexure A-3) made available to the petitioner alongwith notice dated 16.9.2016, nowhere bear signatures of Members of the Committee. Subsequently, Committee headed by ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 14 respondent No.3 ignoring all objections with regard to the procedural .
irregularities committed at the time of the inquiry gave its final report (Annexure A-8), concluding therein that allegations of sexual and mental harassment leveled against the petitioner vide complaint (Annexure A-1) have been found to be correct and as such, strict action is recommended against the petitioner. Petitioner laid challenge to the aforesaid inquiry report by way of detailed representation to the Secretary (Home), who vide order dated 27.5.2017 (Annexure A-10) found merit in the representation of the petitioner and passed following order:
"WHEREAS the disciplinary authority has received a report of inquiry dated 25.10.2016 into the complaint of sexual harassment against Shri Shamsher Singh, Addl.
SP, Ist HPAP Bn. Junga, conducted by the Internal Complaints Committee on Sexual Harassment of Women at Work Places constituted at Police Headquarters, H.P. WHEREAS the disciplinary authority vide Order of even number dated 13.12.2016 & letter of even number dated 02.01.2017 had sought the submissions/representation of Charged officer on the report of inquiry;
WHEREAS the disciplinary authority has examined and considered the representation dated 11.01.2017 submitted by the Charged officer and also heard the Charged Officer in person on 18.03.2017;::: Downloaded on - 24/12/2022 09:26:51 :::CIS 15
WHEREAS as per the proviso to Rule 14 of CCS(CCA) .
Rules, 1965, the Complaints Committee established for inquiring in to the complaints of sexual harassment of women at work places shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of Rule 14 and the Complaint Committee is required to hold, if separate procedure has not been prescribed for the Complaints Committee for holding inquiry into complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in Rule 14 of CCS(CCA) Rules, 1965;
WHEREAS as per the information given by the Director General of Police vide his letter No.P-1(2)-DE/SK/14- 9602 dated 05.04.2017, no independent or separate procedure has been prescribed at Police Headquarters for holding inquiry into the complaints of sexual harassment;
WHEREAS in absence of independent or separate procedure, the inquiry in the instant matter was required to be held, as far as practicable, in accordance with procedure laid down in Rule 14 of CCS(CCA) Rules, 1965;
WHEREAS from the perusal of the report of inquiry and after considering the representation of the Charged officer the disciplinary authority has noticed following shortcomings in the report of inquiry:-::: Downloaded on - 24/12/2022 09:26:51 :::CIS 16
i) The opportunity to cross-examine the .
prosecution witnesses has not been given to the Charged officer;
ii) Statements of witnesses have not been taken in the presence of the Charged Officer;
iii) Statements of Defence witnesses No.11- 20 have been taken jointly;
iv) No daily order sheet has been maintained;
v) No opportunity has been given to the Charged Officer to submit his written statement of defence under Rule 14(18) of CCS(CCA) Rules, 1965 WHEREAS in order to ensure that the inquiry into the complaints of sexual harassment is conducted in accordance with Rule 14 of CCS(CCA) Rules, 1965, the above listed shortcomings are required to be resolved;
NOW, THEREFORE, the disciplinary authority in
accordance with the provisions of Rule 15(1) of
CCS(CCA) Rules, 1965 remand the inquiry back to the Inquiring Authority to further inquire into the matter in order to remove the above shortcomings in the report of inquiry, in accordance with Rule 14 of CCS(CCA) Rules, 1965. The inquiring authority after holding further inquiry accordingly shall submit the report of inquiry to the disciplinary authority within a period of one month positively."
12. Showing utter disregard to the aforesaid observations made by the Disciplinary Authority while passing order dated 27.5.2017, Committee ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 17 headed by respondent No.3 again passed the same inquiry report .
compelling the petitioner herein to again lay challenge to fresh inquiry report by way of representation to the Disciplinary Authority i.e. Principal Secretary (Home) to the Government of Himachal Pradesh. Principal Secretary (Home), on 18. 12.2017, again found the inquiry report submitted by the Committee headed by respondent No.3 to be in violation of the provisions contained under CCS(CCA) Rules and Sexual Harassment Act and as such remanded the case back to the Committee to decide the same in accordance with the provision of rule 14 of CCS(CCA) Rules, 1965.
At this stage, petitioner has approached this Court.
13. Though it has been vehemently argued on behalf of the respondents-State that since fresh inquiry in terms of order dated 18.12.2017 is still pending, present petition is not maintainable, but for the detailed discussion as well as reasons made/stated herein above, this Court is convinced and satisfied that anonymous complaint, containing allegation of mental and sexual harassment leveled against the petitioner was not maintainable and as such, ought not have been inquired into.
Once no action, if any, could be taken by the respondents on the anonymous complaint, inquiry, if any, conducted qua the allegations contained in that complaint is of no consequence. At the cost of repetition, ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 18 it may be again stated that in terms of Rule 9 of Sexual Harassment Act .
etc., complaint of sexual harassment at workplace, if any, could only be entertained if it was made by any aggrieved woman. "Aggrieved woman" as defined under Section 2(a), means a woman of any age working or non-
working alleges to have been subjected to any act of sexual harassment by the respondent at work place. Though, in the case at hand, respondents with a view to prove guilt, if any, of the petitioner has recorded the statements of ten women constables working in the First Reserved Battalion Junga, but it is not understood that once none of them had ever lodged complaint of sexual harassment against the petitioner, how their statements made in support of the complaint could be made basis to hold petitioner guilty of sexual harassment. At no point of time, complaint as contained in Annexure A-1 was filed by the aggrieved woman, which is the basic necessity for initiation of proceedings, if any, under Sexual Harassment Act. Moreover, in terms of Section 9 of the aforesaid Act, complaint, if any, of sexual harassment could be filed within a period of three months from date of the incident, but since in the case at hand, anonymous complaint bears no date, there was otherwise no occasion for Sexual Harassment Committee to take cognizance of the same. Even if it is presumed that anonymous complaint made in the case could ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 19 be entertained by Sexual Harassment Committee, inquiry report submitted .
by the Committee is vitiated on account of non-compliance of provisions contained under Sections 11 of the Act, which prescribes mode and manner, in which, inquiry is to be conducted. Otherwise also, as per Section 10 of the Act, at the first instance, effort is to be made by the Committee for conciliation inter-se complainant and the delinquent official, but in the case at hand, no such efforts ever came to be made, rather Committee headed by respondent No.3 firstly recorded the statements of 10 women constables and thereafter, issued notice to the petitioner to explain his conduct. In normal circumstances, statements, if any, of the witnesses adduced in support of the complaint, ought to have been recorded in the presence of the delinquent officials so that he could cross-examine such witnesses before adducing any evidence in defence. In the instant case, what to talk about affording an opportunity of cross-examination to the petitioner, statement of ten witnesses adduced in defence by the petitioner was recorded jointly (Annexure A-6), which is not permissible.
14. At this stage, Mr. Sudhir Bhatnagar, learned Additional Advocate General argued that otherwise also, in terms of orders dated 27.5.2017 and 18.12.2017, passed by the Principal Secretary (Home) to the Government of Himachal Pradesh, inquiry, if any, against the petitioner ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 20 was to be conducted in terms of the provisions contained under Rule 14 of .
the CCS(CCA) Rules, 1965 and not under Sexual Harassment Act. Though this Court finds no merit in the aforesaid submission made by the learned Additional Advocate General because very object of bringing aforesaid legislation is to provide internal mechanism for deciding the complaints, if any, with regard to sexual harassment of women official at work place, but even then, no procedure as prescribed under Section 14 of the CCS(CCA) Rules, ever came to be followed by the Inquiry Officer while submitting Inquiry Report. As per section 14 of the CCS(CCA) Rules, 1965, at the first instance, Disciplinary Authority after having received the complaint is required to frame memorandum of charge, enabling the delinquent official to refute the same by way of filing reply. In case Disciplinary Authority is not satisfied with the explanation given by the delinquent official, it may order initiation of disciplinary proceedings by appointing inquiry officer, who in turn would again serve delinquent official with memorandum/article of charge and time to file written statement. Once written statement is filed, parties are permitted to lead the evidence.
Opportunity is afforded to delinquent official to engage defence assistance.
Once pleadings are complete and defence assistant is appointed, Inquiry Officer would afford an opportunity of leading evidence in support of the ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 21 complaint. If evidence in support of the complaint is led on record, .
delinquent official would be afforded an opportunity of cross-examination.
After conclusion of the evidence of prosecution, delinquent official is also required to be given opportunity to lead evidence in defence. After completion of aforesaid procedural formalities, inquiry officer can proceed to pass final inquiry report and thereafter, submit the same to the higher authorities for action, if any. In the instant case, sexual Harassment Committee headed by respondent No.3 nowhere followed procedure as detailed herein above and prescribed under Clause Rule 14 of the CCS(CCA) Rules, 1965, rather Committee of its own whims and fences, firstly, entertained the anonymous complaint and thereafter recorded the statements of some of the women constables in support of the allegations contained in the complaint and issued notice to the petitioner to explain his conduct. Since at no point of time, statements of witnesses adduced on record in support of the complaint were recorded in the presence of the petitioner, he was not afforded an opportunity to cross-examine. Though such opportunity subsequently came to be afforded to the petitioner in terms of order dated 27.5.2017, passed by Principal Secretary (Home) to the Government of Himachal Pradesh (Annexure A-10), but since by that time statements of witnesses adduced in support of the complaint stood ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 22 already recorded, opportunity to cross-examine if afforded was not of much .
help to the petitioner. Though vide order dated 27.5.2017, respondent No.1, specifically directed respondent No.3 to follow the procedure laid down under the Rule 14 of CCS(CCA) Rules, 1965 but yet Committee headed by respondent No.3 failed to adhere to aforesaid order passed by respondent No.1, compelling the petitioner to again approach the aforesaid authority, who again vide order dated 18.9.2017, observed that inquiry officer has not conducted inquiry into the complaint of sexual harassment in accordance with the provisions of Rule 14 of CCS(CCA) Rules, 1965 and as such, remanded the case back to the Committee. Reliance is placed upon judgment rendered by the Hon'ble Apex Court in Union of India and Ors v. B.V. Gopinath, (2014) 1 SCC 351 (alongwith connected matters), which reads as under:
"40.Article 311(1) of the Constitution of India ensures that no person who is a member of a civil service of the Union or an all India service can be dismissed or removed by an authority subordinate to that by which he was appointed. The overwhelming importance and value of Article 311(1) for the civil administration as well as the public servant has been considered stated and re- stated, by this Court in numerous judgments, since the Constitution came into effect on 19th January, 1950. Article 311(2) ensures that no civil servant is dismissed or reduced in rank except after an inquiry held in accordance with the rules of natural justice. To effectuate the ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 23 guarantee contained in Article 311(1) and to ensure .
compliance with the mandatory requirements of Article 311(2), the Government of India has promulgated CCS (CCA) Rules, 1965.
41. Disciplinary proceedings against the respondent herein were initiated in terms of Rule 14 of the aforesaid Rules. Rule 14(3) clearly lays down that where it is proposed to hold an inquiry against a government servant under Rule 14 or Rule 15, the disciplinary authority shall draw up or cause to be drawn up the charge sheet. Rule 14(4) again mandates that the disciplinary authority shall deliver or cause to be delivered to the government servant, a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and the supporting documents including a list of witnesses by which each article of charge is proposed to be proved. We are unable to interpret this provision as suggested by the Additional Solicitor General, that once the disciplinary authority approves the initiation of the disciplinary proceedings, the charge sheet can be drawn up by an authority other than the disciplinary authority. This would destroy the underlying protection guaranteed under Article 311(1) of the Constitution of India. Such procedure would also do violence to the protective provisions contained under Article 311(2) which ensures that no public servant is dismissed, removed or suspended without following a fair procedure in which he/she has been given a reasonable opportunity to meet the allegations contained in the charge sheet. Such a charge sheet can only be issued upon approval by the appointing authority i.e. Finance Minister.::: Downloaded on - 24/12/2022 09:26:51 :::CIS 24
45. Rule 14 of the CCS (CCA) Rules provides for holding a .
departmental enquiry in accordance with the provisions contained in Article 311(2) of the Constitution of India. Clause (8) also makes it clear that when the Finance Minister is approached for approval of charge memo, approval for taking ancillary action such as appointing an inquiry officer/presiding officer should also be taken. Clause (9) in fact reinforces the provisions in clause (8) to the effect that it is the Finance Minster, who is required to approve the charge memo. Clause (9) relates to a stage after the issuance of charge sheet and when the charge sheeted officer has submitted the statement of defence. It provides that in case the charge sheeted officer simply denies the charges, CVO will appoint an inquiry officer/presiding officer. In case of denial accompanied by representation, the Chairman is to consider the written statement of defence. In case the Chairman comes to a tentative conclusion that written statement of defence has pointed out certain issues which may require modification/amendment of charges then the file has to be put up to the Finance Minster. So the intention is clearly manifest that all decisions with regard to the approval of charge memo, dropping of the charge memo, modification/amendment of charges have to be taken by the Finance Minister.
51. Ms. Indira Jaising also submitted that the purpose behind Article 311, Rule 14 and also the Office Order of 2005 is to ensure that only an authority that is not subordinate to the appointing authority takes disciplinary action and that rules of natural justice are complied with. According to the learned Addl. Solicitor General, the respondent is not ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 25 claiming that rules of natural justice have been violated as .
the charge memo was not approved by the disciplinary authority. Therefore, according to the Addl. Solicitor General, the CAT as well as the High Court erred in quashing the charge sheet as no prejudice has been caused to the respondent.
52.In our opinion, the submission of the learned Addl. Solicitor General is not factually correct. The primary submission of the respondent was that the charge sheet not having been issued by the disciplinary authority is without authority of law and, therefore, nonest in the eye of law. This plea of the respondent has been accepted by the CAT as also by the High Court. The action has been taken against the respondent in Rule 14(3) of the CCS(CCA) Rules which enjoins the disciplinary authority to draw up or cause to be drawn up the substance of imputation of misconduct or misbehaviour into definite and distinct articles of charges. The term "cause to be drawn up" does not mean that the definite and distinct articles of charges once drawn up do not have to be approved by the disciplinary authority. The term "cause to be drawn up" merely refers to a delegation by the disciplinary authority to a subordinate authority to perform the task of drawing up substance of proposed "definite and distinct articles of charge sheet". These proposed articles of charge would only be finalized upon approval by the disciplinary authority. Undoubtedly, this Court in the case of P.V.Srinivasa Sastry & Ors. Vs. Comptroller and Auditor General & Ors.[19] has held that Article 311(1) does not say that even the departmental proceeding must be initiated only ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 26 by the appointing authority. However, at the same time it is .
pointed out that "4......However, it is open to Union of India or a State Government to make any rule prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority." It is further held that "4.......Any such rule shall not be inconsistent with Article 311 of the Constitution because it will amount to providing an additional safeguard or protection to the holders of a civil post." r
15. Rule 14 of CCS(CCA) Rules clearly provides that whenever departmental proceedings are held against the government servant under rule 14 or Rule 15, Disciplinary Authority shall draw up or cause to be drawn up the charge-sheet. Rule 14(4) clearly mandates that the Disciplinary Authority shall deliver or cause to be delivered to the government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehavior and the supporting documents including a list of witnesses by which each article of charge is proposed to be proved. Procedure as provided under Article 14 of CCS(CCA) Rules is strictly in conformity with the provisions contained under Article 311 (2) of the Constitution of India and as such, if same is not followed, it would be violative of provisions contained under Section 311 (2) of the Constitution ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 27 of India, which clearly provides that no public servant is dismissed, .
removed or suspended without following fair procedure in which he/she is to be given a reasonable opportunity to meet the allegations contained in the charge sheet.
16. Since on two occasions, inquiry officer failed to adhere to the observations made by higher authorities i.e. respondent No.1 vide orders dated 27.5.2017 and 18.12.2017 with regard to non-compliance of provisions contained in Section 14 of the Rules, respondent No.1 while passing order dated 18.12.2017 had no occasion to remand the case, but ought to have quashed the inquiry proceedings being conducted in violation of the provisions contained under Rule 14 of the CCS(CCA) Rules, 1965 and Sexual Harassment Act. In such like proceedings, which may have an adverse impact on the career of an employee, cannot be allowed to run for an indefinite period. No doubt, in terms of order dated 18.12.2017, inquiry officer issued fresh memorandum vide order dated 25.11.2018 and inquiry is pending but since this court is of definite view as has been discussed in detail herein above, that no action, if any, could be taken on the anonymous complaint containing allegation of sexual harassment by the petitioner, prayer made by the petitioner for quashing complaint as well as inquiry report submitted by respondent No.3 deserves to be accepted.
::: Downloaded on - 24/12/2022 09:26:51 :::CIS 2817. Reliance is also placed upon judgment passed by the Hon'ble .
Apex Court in State of Tamil Nadu Rep. By Secretary to Govt. (Home) v.
Promod Kumar IPS & Anr, in Civil Appeal No. 8427-8428 of 2018, relevant paras whereof read as under:-
"15. Rule 8 of the All India Service (Discipline and Appeal) Rules, 1969 prescribes a procedure for imposing major penalties. A major penalty specified in Rule 6 cannot be imposed except after holding an enquiry in the manner prescribed in Rule 8. Where it is proposed to hold an enquiry against a member of the service under Rule 8, the disciplinary authority shall "draw up or caused to be drawn up" the substance of the imputation of misconduct or misbehavior into definite and distinct article of charge. The Rule further provides for an opportunity to be given to the delinquent to submit his explanation, the appointment of an inquiring authority and the procedure to be followed for imposition of a penalty with which we are not concerned in this case. The disciplinary authority as defined in Rule 2 (b) is the authority competent to impose on a member of the service any of the penalties specified in Rule 6. Rule 7 provides that the authority to institute proceedings and to impose penalty on a member of All India Service is the State Government, if he is serving in connection with the affairs of the State. There is no doubt that the Government of Tamil Nadu is the disciplinary authority. The authority to act on behalf of the State Government as per the Business Rules is the Minister for Home Department. There is no dispute that the Hon'ble Chief Minister was holding the said department during the relevant period (2011-2016). Matters pertaining to disciplinary action against IPS, IAS and IFS officers ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 29 had to be dealt with by the Chief Minister as per Standing Order .
No.2 dated 09.01.1992 issued by the Chief Minister of Tamil Nadu under Rule 35 (4) of the Business Rules which reads as follows "Paragraph 18. Disciplinary Action:-
Files relating to disciplinary action against I.A.S./I.P.S./I.F.S. Officers in the senior-grade and above at the stage of issue of charge memo/show cause notice to the above officers alone should be circulated to the Chief Minister. In the case of Secretaries to Government where action is contemplated under Rule 17 (a) or 17
(b) of the Tamil Naidu Civil Services (CC &A) Rules such files should be circulated to the Chief Minister. In the case of Heads of Department files where action is contemplated under Rule 17 (b) of the T.N.C.S. (CC &A) Rules, alone should be circulated to the Chief Minister.
In the case of District Revenue Officers, the files should be circulated to the Chief Minister only at the stage of imposition of penalty after obtaining the explanation of the officers.
In the case of Joint Secretary Deputy Secretary where action is contemplated under Rule 17(b) of the T.N.C.S. (CC &A) Rules such cases should be circulated by the Chief Secretary to the Chief Minister.
In respect of all other officers files should be circulated to the Chief Minister as per Business Rules."
16. By an order dated 19.04.2018, we directed the Chief Secretary, State of Tamil Nadu to file an affidavit explaining ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 30 the position pertaining to the Business Rules and the standing .
orders. The affidavit filed by the Chief Secretary, Government of Tamil Nadu dated 14.05.2018 discloses that the first Respondent was arrested on 02.05.2012. He was placed under suspension on 10.05.2012 under Rule 3 (2) of the All India Service (Discipline and Appeal) Rules, 1969 after obtaining the approval of the Hon'ble Chief Minister on the note for circulation dated 09.05.2012. It was further stated in the affidavit that regular departmental action for a major penalty was initiated against Respondent No.1 under the All India Service (Discipline and Appeal) Rules, 1969 on 05.04.2013 after obtaining the approval of the Hon'ble Chief Minister.
17. It is clear that the approval of the disciplinary authority was taken for initiation of the disciplinary proceedings. It is also clear from the affidavit that no approval was sought from the disciplinary authority at the time when the charge memo was issued to the delinquent officer. The submission made on behalf of the Appellant is that approval of the disciplinary authority for initiation of disciplinary proceedings was sufficient and there was no need for another approval for issuance of charge memo. The basis for such submission is that initiation of disciplinary proceedings and issuance of charge memo are at the same stage.
We are unable to agree with the submission in view of the judgment of this Court in B.V. Gopinath (supra). In that case the charge memo issued to Mr. Gopinath under Rule 14(3) of the Central Civil Service (Classification, Control and Appeal) Rules, 1965 was quashed by the Central Administrative Tribunal on the ground that the Finance Minister did not approve it. The judgment of the Tribunal was affirmed by the High Court. The Union of India, ::: Downloaded on - 24/12/2022 09:26:51 :::CIS 31 the Appellant therein submitted before this Court that the approval .
for initiation of the departmental proceedings includes the approval of the charge memo. Such submission was not accepted by this Court on an interpretation of Rule 14(3) which provides that the disciplinary authority shall " draw up or cause to be drawn up" the charge memo. It was held that if any authority other than the disciplinary authority is permitted to draw the charge memo, the same would result in destroying the underlying protection guaranteed under Article 311 (2) of the Constitution of India.
18. Rule 8 (4) of the All India Service (Discipline and Appeal) Rules, 1969 also mandates that the disciplinary authority shall "draw up or cause to be drawn up" the charge memo. We see no reason to take a view different from the one taken by this Court in B.V. Gopinath (supra). We also see no substance in the submission made by the Senior Counsel for the State that the said judgment needs reconsideration. Assuming that Mr.Giri is right in his submission that the initiation of disciplinary proceedings and issuance of charge memo are at the same stage, the mandatory requirement of Rule 8 which provides for the charge memo to be drawn by the disciplinary authority cannot be ignored. We reject the submission on behalf of the Appellant that Gopinath's case can be distinguished on facts. We are not in agreement with the contention of the Appellant that the business rules and standing orders of the State of Tamil Nadu are quite different from the office orders and circulars issued by Union of India which formed the basis of the judgment in Gopinath's case. A close reading of the said judgment would disclose that reliance on the office note was only in addition to the interpretation of the Rule."
::: Downloaded on - 24/12/2022 09:26:51 :::CIS 3219. It is also settled law that if the rule requires something to be .
done in a particular manner it should be done either in the same manner or not at all- Taylor v. Taylor (1875) 1 Ch.D. 426, 431. In view of the mandatory requirement of Rule 8 (4) and the charge memo being drawn up or cause to be drawn up by the disciplinary authority is not complied with, we are of the considered opinion that there is no reason to interfere with the judgment of the High Court on this issue. The only addition we would like to make is to give liberty to the disciplinary authority to issue a charge memo afresh after taking approval from the disciplinary authority."
18. Consequently, in view of the detailed discussion made herein above, present petition is allowed and complaint (Annexure A-1), orders dated 21.5.2017 (Annexure A-10) & 18.12.2017 (Annexure A-11) and memorandum dated 20.4.2018 (Annexure A-13) are quashed and set-aside.
Accordingly, present petition is disposed of alongwith pending applications if any.
17th June, 2022 (Sandeep Sharma),
(manjit) Judge
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