Central Administrative Tribunal - Bangalore
M G Karan vs D/O Posts on 6 June, 2023
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OA.No.170/00289/2022/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00289/2022
DATED THIS THE 06TH DAY OF JUNE, 2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
M.G. Karan,
Age: 51 years,
S/o Mariyappa,
Working as Assistant
Superintendent of Post Offices,
Gadag Sub Division, Gadag 582 101,
Residing at: No. T 101, Mahine Residency,
Kalyan Nagar, Dharwad 580 007 .... Applicant
(By Shri P. Kamalesan, Advocate)
Vs.
1. Union of India,
Represented by Secretary,
Department of Post,
Dak Bhavan, New Delhi 110 001
2. Post Master General,
North Karnataka Region,
Dharwad 580 001
3. Director of Postal Services,
North Karnataka Region,
Dharwad 580 001
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OA.No.170/00289/2022/CAT/BANGALORE
4. Chief Post Master General,
Karnataka Circle,
Bangalore 560 001 ...Respondents
(By Shri Vishnu Bhat, Senior Panel Counsel)
O R D E R (ORAL)
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"1. Quash the O/o Post Master General, North Karnataka Region, Dharwad 580001 Memo No. NKR/VIG/Disc-1008/2022 dated: 10-3-2022 vide Annexure- A5.
2. Quash department of post O/o Post Master General, North Karnataka Region, Dharwad 580 001 letter No. NKR/VIG/Disc/1008/2020 dated: 30-6-2022 vide Annexures A6 and A7.
3. Grant any other relief as deemed fit into the facts and circumstances of the case, in the interest of justice and equity."
2. The facts in brief as stated by the applicant are that he is working as Assistant Superintendent of Post Offices at Gadag Sub Division at present. The applicant while working as Assistant 3 OA.No.170/00289/2022/CAT/BANGALORE Superintendent of Post Offices (Division), Office of Senior Superintendent of Post Offices, Dharwad, the GDS Packer Unkal Sub-Post Office, Smt. Shivaranjini D. Sanglikar lodged a complaint against the applicant on 27.06.2017 alleging sexual harassment by him. The said GDS packer Smt. Shivaranjini D. Sanglikar also lodged a police complaint against the applicant on the same material facts relating to the same incident. The case was entrusted to the Circle Level Committee for Prevention of Sexual Harassment of Women at Workplace ('Committee' for short) which was constituted as per Section 4 (1) and 4 (2) of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ('Act' for short). The Committee submitted a report dated 19.07.2019, recommending disciplinary action against the applicant under Central Civil Services (Classification, Control and Appeal) Rules, 1965 ('Rules' for short). The Vidyanagar Police Station, Hubli registered a case under Crime No. 183/2017. C.C. No. 2221/2017 was registered before the learned JMFC-II at Hubli. Though the same was pending at the time of filing this application, the office of Post Master General, North Karnataka Region, Dharwad vide Memo dated 10.03.2022 has initiated disciplinary 4 OA.No.170/00289/2022/CAT/BANGALORE proceedings under Rule 14 of the Rules against the applicant. Hence, this OA.
3. Learned counsel Shri P. Kamalesan, representing the applicant, submitted that in terms of Rule 81 of Posts & Telegraphs Manual, Volume III, once a charge sheet has been filed in the court against an employee, the departmental proceedings, if any, initiated against him on the same facts of the case, should be kept in abeyance till the finalization of criminal proceedings. Learned counsel further submitted that though the departmental proceedings and criminal charges were based on identical facts, the parallel inquiry initiated against the applicant (departmental inquiry) is in violation of the law enunciated by the Hon'ble Apex Court in C.A. No. 1906/1999 dated 30.03.1999 in the case of Captain M. Paul Anthony vs Bharat Gold Mines Ltd. & Anr. Learned counsel submitted that during the pendency of the present proceedings, vide order dated 02.05.2023, the applicant has been convicted for the offences punishable under Sections 341, 323, 354A, 506 and 509 of IPC. In the Criminal Appeal No. 5034/2023 filed by the applicant against the said judgment and order, the learned Additional District and Sessions Judge sitting at Hubli, Dharwad, vide order dated 5 OA.No.170/00289/2022/CAT/BANGALORE 23.05.2023 has suspended the said order of conviction and sentence and the order of compensation dated 02.05.2023 passed in C.C. No. 2221/2017 for a period of five months subject to certain conditions. Further, inviting the attention of the Tribunal to Rule 14 (2) of the Rules and the proviso thereof, submitted that no further proceedings under Rule 14 of the Rules is warranted pursuant to the report of the Committee. Thus, the Disciplinary Authority proposing to hold further inquiry against the applicant with reference to the charges framed, already considered and decided by the Committee, is unjustifiable.
4. Learned counsel Shri Vishnu Bhat, representing the respondents, justifying the impugned action of the respondents submitted that there being no absolute bar to hold an inquiry relating to the statement of Articles of Charges framed against the applicant under Rule 14 of the Rules notwithstanding the Committee's report, the same cannot be held to be unwarranted. The order passed by Additional District and Sessions Court sitting at Hubli, Dharwad dated 23.05.2023, suspending the order of conviction and sentence passed by the learned JMFC-II, Hubli in C.C. No. 2221/2017 for a period of five months, being an interim 6 OA.No.170/00289/2022/CAT/BANGALORE relief, the same cannot come to the aid of the applicant. Criminal proceedings and disciplinary proceedings being different and distinct, the application deserves to be rejected. Learned counsel further argued that the inquiry proceedings initiated under Rule 14 of the Rules are in conformity with Rule 14 (2), read with the proviso thereof.
5. We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the material on record.
6. This OA was filed by the applicant challenging the inquiry proceedings initiated by the Disciplinary Authority under Rule 14 of the Rules mainly on the ground that no such proceedings can be initiated during the pendency of the criminal trial involving identical facts. In addition to this, a new ground is now urged by the learned counsel for the applicant that no further inquiry proceedings are warranted pursuant to the report submitted by the Committee which acts as the Inquiring Authority under Rule 14 (2) of the Rules and proviso thereof. As such, the initiation of Rule 14 proceedings by the Disciplinary Authority is vitiated. The 7 OA.No.170/00289/2022/CAT/BANGALORE recommendations of the Committee dated 19.07.2019 makes it clear that the applicant was found guilty by the Committee and disciplinary action under the Rules needs to be taken. Rule 14 (2) and the proviso reads thus:
"14. Procedure for imposing major penalties (1) xxxxx (2) Whenever the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof.
Provided that where there is a complaint of sexual harassment within the meaning of Rule 3-C of the Central Civil Services (Conduct) Rules, 1964, the Complaints Committee established in each Ministry or Department or Office for inquiring into such complaints, shall be deemed to be the Inquiring Authority appointed by the Disciplinary Authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules."
7. This proviso inserted vide G.I. Department of Personnel and Training, Notification No. 11012/5/2001-Estt. (A), dated 8 OA.No.170/00289/2022/CAT/BANGALORE 01.07.2004 and published as GSR 225 in the Gazette of India, dated 10.07.2004, contemplates that the complaints Committee established in each Ministry or Department or Office for inquiring into the complaint of sexual harassment within the meaning of Rule 3-C of the Central Civil Services (Conduct) Rules, 1964, shall be deemed to be the Inquiring Authority appointed by the Disciplinary Authority for the purpose of the said rules. Having regard to the recommendations made by the Committee, proceedings have been initiated to hold an inquiry against the applicant as prescribed in Rule 14 of the Rules, appointing the Presenting Officer, considering the Committee as the Inquiring Authority. Such proceedings initiated by the Disciplinary Authority cannot be held to be vitiated. In the present proceedings initiated by the Disciplinary Authority, the Committee itself shall act as Inquiring Authority and the Presenting Officer is appointed. If the arguments of the learned counsel for the applicant is accepted and the OA is allowed setting aside the proceedings initiated by the Disciplinary Authority for conducting inquiry against the applicant under Rule 14 of the Rules, directing the Disciplinary Authority to merely accept the report/recommendation of the Committee and to pass the penalty order, the same would not come to the assistance of the applicant. 9
OA.No.170/00289/2022/CAT/BANGALORE On the other hand, it may assist the Disciplinary Authority to pass the punishment order immediately which would go against the applicant himself. As such, this argument is wholly misconceived and is not supported by pleadings/material documents. Providing an opportunity to the applicant in holding an inquiry under Rule 14 being in conformity with principles of natural justice, the same cannot be held to be unsustainable. It is significant to note that in the present case, the Committee has recommended to take disciplinary action against the applicant under the Rules. Issuing statement of imputations of misconduct or misbehaviour in support of each article of charge is in compliance with Rule 14 of the Rules.
8. At this juncture, it is beneficial to refer to the OM dated 04.11.2022 issued by the DOPT, Government of India. In the said OM, the relevant provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013/the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013/Executive Instructions have been compiled. In terms of the said OM, Clause (C) reads thus:
(C) INQUIRY INTO COMPLAINT [FIRST STAGE] 10 OA.No.170/00289/2022/CAT/BANGALORE The Complaints Committees may act on complaints of sexual harassment when they receive them directly or through administrative authorities etc, or when they take cognizance of the same suo-moto. As per Section 9 (1) of the Act, the aggrieved woman or complainant is required to make a complaint within three months of the incident and in case there has been a series of incidents, three months of the last incident. The Complaints Committee may however extend the time limit for reasons to be recorded in writing, if it is satisfied that the circumstances were such which prevented the complainant from filing a complaint within the stipulated period.
As mentioned above, the complaints of sexual harassment are required to be handled by Complaints Committee. On receipt of a complaint, facts of the allegation are required to be verified. This is called preliminary enquiry/fact finding enquiry or investigation. The Complaints Committee conducts the investigation. They may then try to ascertain the truth of the allegations by collecting the documentary evidence as well as recording statements of any possible witnesses including the complainant. If it becomes necessary to issue a Charge Sheet, disciplinary authority relies on the investigation for drafting the imputations, as well as for evidence by which the charges are to be proved.
Therefore this is a very important part of the investigation.
[vide Para 7 and 8 of OM No. 11013/2/2014-Estt.(A-III) dated 16.07.2015]"
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OA.No.170/00289/2022/CAT/BANGALORE Clause (D) deals with inquiry under Central Civil Services (Classification, Control and Appeal) Rules, 1965 (second stage).
The relevant paragraphs reads thus:
"(D) INQUIRY UNDER CCS (CCA) RULES, 1965
[SECOND STAGE]
Dual Role
In the light of the Proviso to the Rule 14 (2) mentioned above, the Complaints Committee would normally be involved at two stages. The first stage is investigation already discussed in the preceding para. The second stage is when they act as Inquiring Authority. It is necessary that the two roles are clearly understood and the inquiry is conducted as far as practicable as per Rule 14 of CCS (CCA) Rules, 1965. Failure to observe the procedure may result in the inquiry getting vitiated.
xxxxxxxxx Powers of the Committee to make recommendations Normally, the Inquiry Officer is not allowed to make any recommendations in his report. Here the function of the Complaints Committee acting as the Inquiring Authority differs.
The Complaints Committee will also have the powers to recommend:-12
OA.No.170/00289/2022/CAT/BANGALORE
(a) to transfer the aggrieved woman or the charged officer to any other workplace; or
(b) to grant leave to the aggrieved woman up to a period of three months. (The leave will not be deducted from her leave account).
(c) to grant such other relief to the aggrieved woman as may be prescribed; or
(d) to deduct from the salary or wages of the charged officer such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs. Any amount outstanding at the time of cessation of the services of the charged officer due to retirement, death or otherwise may be recovered from the terminal benefits payable to the officer or his heirs. Such compensation will not amount to penalty under Rule 11 of CCS (CCA) Rules in terms of the Explanation (ix) to Rule 11.
(e) to take action against complainant, if the allegation is malicious, or the complainant knows it to be false, or has produced any forged or misleading document.
(f) to take action against any witness if such witness has given false evidence or produced any forged or misleading document.
[Vide Para 6 and 7 of the OM No. 11013/2/2014-Estt.A-III dated 27.11.2014] [Vide Para 5 and 26 of OM No. 11013/2/2014-Estt.(A-III) dated 16.07.2015]
(g) The Complaints Committee at the written request of the aggrieved women may recommend to the employer to- i. restrain the respondent from reporting on the work performance of the aggrieved women or written her confidential report, and assign the same to another officer; 13
OA.No.170/00289/2022/CAT/BANGALORE ii. restrain the respondent in case of an educational institution from supervising any academic activity of the aggrieved women.
[Rule 8 of the SHWW (PPR) Rules, 2013]"
Thus, it is clear that the Complaints Committee plays a dual role, at the first stage as an investigation authority and in the second stage as an Inquiring Authority. Even in the reply/representation submitted by the applicant pursuant to the charge memo, the only request made is to keep the departmental inquiry in abeyance till completion of criminal trial, more particularly, in the backdrop of the criminal trial pending before the learned JMFC at the time of filing application. However, now the applicant is convicted in the Criminal Case No. 2221/2017 and it is under further challenge.
9. It is well settled that departmental proceedings stand on a different footing than the criminal proceedings. The scope of departmental inquiry in judicial proceedings and the effect of acquittal by the Criminal Court has been examined by the Hon'ble Apex Court in Depot Manager, A.P. State Road Transport Corporation vs. Mohd. Yousuf Miya & Ors reported in (1997) 2 SCC 699. The relevant para reads thus:14
OA.No.170/00289/2022/CAT/BANGALORE "....The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence in violation of a duty the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct of breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in the that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in 15 OA.No.170/00289/2022/CAT/BANGALORE criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of Evidence Act. The evidence required in the departmental enquiry is not regulated by Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304A and 338 IPC. Under these circumstances, the High Court was not right in staying the proceedings."
10. This exposition has been further confirmed by the Hon'ble Apex Court in Ajit Kumar Nag vs G.M. (P.J.) Indian Oil Corporation. Ltd. Haldia & Ors. in Civil Appeal No. 4544 of 2005, DD 19.09.2005. The Hon'ble Apex Court has observed thus:
"....The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond reasonable doubt', he cannot be convicted by a court of law. In departmental enquiry, on the other hand, 16 OA.No.170/00289/2022/CAT/BANGALORE penalty can be imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability'."
11. The judgment in Paul Anthony's case, supra, would not come to the assistance of the applicant. Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no legal bar. In the present case, the applicant has been convicted by the learned JMFC and an interim order of stay has been passed by the learned Sessions Judge for a particular period, as such, the same would not absolve the applicant from the liability under disciplinary proceedings instituted against him.
12. For the reasons aforesaid, this application deserves to be rejected.
13. Accordingly, the OA stands dismissed.
14. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/