Central Administrative Tribunal - Madras
T Bagavathy vs D/O Post on 30 October, 2018
1 OA 810/2014
Central Administrative Tribunal
Madras Bench
OA/310/00810/2014
Dated the 30th October Two Thousand Eighteen
PRESENT
Hon'ble Mr.R.Ramanujam, Member(A)
&
Hon'ble Mr.P.Madhavan, Member(J)
T.Bagavathy
S/o S.Thangaiyan,
No.21, T.V.K.Street,
Neravi 609 604. .. Applicant
By Advocate Mr.R.Malaichamy
Vs.
1. Union of India, rep by the
Postmaster General,
Central Region(TN),
Tiruchirappalli 620 001.
2. Superintendent of Post Offices,
Nagapattinam Division,
Nagappattinam 611 001.
3. Assistant Superintendent of Post Offices(HQrs),
Nagappattinam Division,
Nagappattinam 611 001.
The adhoc Disciplinary Authority
4. The Inspector Posts,
Karaikal Sub Division,
Karaikal 609 602.
5. Smt. R.Usharani,
Gramin Dak Sevak Mail Packet (GDS MP),
Kollapuram 609 608. .. Respondents
By Advocte Mr.K.Rajendran(R1-4)
2 OA 810/2014
ORDER
[Pronounced by Hon'ble Mr.P.Madhavan, Member(J)] The applicant has filed this OA seeking the following relief:-
"To call for the records of the 4th respondent pertaining to his memo made in No.PF/TB/KGM BO/Dlgs dated 19.2.2013 and the order Removal from engagement passed by the 3 rd respondent vide his memo No.ASP/HQrs/02/Dlgs dated 28.5.2013 and the corrigendum issued by the 3 rd respondent vide memo No.ASP/HQrs/02/Dlgs dated 03.6.2013, the order of 2nd respondent rejecting the appeal vide his memo No.PET/01/2013 dated 12.12.2013 and the order of 1st respondent made in memo No.STC/4-6/2014 dated 07.5.2014 and set aside the same, consequent to direct the respondents 1 to 4 to reinstate the applicant into service with all service benefits; and to pass such further or other orders as this Tribunal may deem fit and proper in the circumstances of the case."
2. The applicant's case in brief is that he is working as Gramin Dak Sevak Mail Deliver-Mail Carrier(GDS MD-MC), Kurungulam B.O. And while working as such he was issued with a charge memo dated 19.2.2013 proposing imposition of penalty under Rule 10 of GDS (Conduct & Engagement) Rules, 2011 on the basis of a report dated 17.11.2012 submitted by Circle Complaint Committee(CCC) of sexual harassment of woman employee at work place. It was alleged that the applicant used to watch porn film clippings in office and make sexually coloured remarks at the complainant women customers coming to office etc. He also used to act as de facto Sub-Postmaster (SPM) of Kollapuram SO. It was alleged that Shri Bagavathy was in 3 OA 810/2014 the entire episode. On receipt of memo, the applicant had submitted a representation dated 05.3.2013 within 30 days denying all the allegations and filed a detailed representation on 16.3.2013. The 3rd respondent was appointed as an adhoc Disciplinary Authority by the 2nd respondent. According to the applicant, without considering the various points raised by him in the representation, he was removed from engagement by the 3rd respondent by memo dated 28.5.2013. The applicant had filed an Appeal dated 03.6.2013 and an additional appeal dated 20.6.2013 to the 2 nd respondent. They were rejected by the 2nd respondent after a gap of 6 months. The applicant says that he had also filed a Revision Petition dated 31.12.2013 to the 1 st respondent and it was also rejected by memo dated 07.5.2014. According to the applicant, the name of the applicant was included in the inquiry report of complainant committee as a subsidiary offender without any base and with malafide intention to implicate for departmental action. According to the applicant, the inquiry by the complaints committee was not conducted in accordance with Rule 14(2) of CCS (CCA) Rules, 1965 in letter and spirit. The complaints committee should have conducted the inquiry as far as practicable under Sub Rule 2 of Rule 14 of CCS (CCA) Rules, 1965. He should have been supplied with all documents for his defence and opportunity for cross examination etc. According to the learned counsel for the applicant, this has seriously prejudiced the defence of the applicant. He was also not given a copy of the complaint on which inquiry was conducted. So, the applicant seeks to set aside the order passed by the Disciplinary Authority and to reinstate him into engagement.
4 OA 810/2014
3. The respondents had filed a reply stating that one Smt.R.Usharani, GDS Packer, Kollapuram SO had preferred a complaint on 11.8.2012 to the PMG, Tiruchy alleging uttering of sexually coloured remarks, physical abuse and watching film with pornographic content in office premises during working hours by one Shri M.Paneerselvam, then SPM, Kollapuram SO and the applicant. On receipt of the complaint a preliminary inquiry was conducted by the ASP Mayiladuthurai and she concluded that there exists a prima facie case of sexual harassment. Hence, the complaint was forwarded to CCC for prevention of sexual harassment of women employees at work place. The Committee conducted various sittings and conducted inquiry on 12.10.2012, 13.10.2012, 05.11.2012 and 06.11.2012. 17 officials were examined. The report found the applicant guilty and the Disciplinary Authority had passed the impugned order. According to the respondents, as per OM No.11013/11/2011-Estt(A) dated 26.4.2004 the report of the Complaint Committee shall be deemed to be an inquiry report under the CCS Rules. So, there is no need of a formal charge as stated by the applicant. As such there is no provision for issuing a charge sheet, permission of defence assistant, cross examination of witness by the charged official, supply of documents etc. Based on the said inquiry report action was initiated. The CC has been constituted as per guidelines and norms laid down by the Hon'ble Supreme Court in Vishaka & Others v. State of Rajasthan & Others (JT 1997 (7) SC 384) and as per DoPT OM No.11013/10/97-Estt(A) dated 13.2.1998 and as per the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013. According to the respondents, the inquiry has 5 OA 810/2014 been conducted in a manner giving ample opportunities to the charged GDS to explain his side and as the inquiry report of the CCC was taken as a inquiry report for the purpose of Disciplinary action under relevant rules, the action satisfies all the relevant rules relating to the right of the applicant. So, according to the respondents, the applicant has been given reasonable opportunities to refute the charge. There is no obligation to give a copy of the complaint to the applicant. No one has prevented him to cross examine the witness. So, the applicant is not entitled to any of the relief prayed for.
4. Learned counsel for the applicant mainly relies upon the decision of this Tribunal in OA 1347/2015 dated 10.6.2016 and OA 1489/2013 dated 16.11.2016 and the Order of the Hon'ble Madras High Court in WP 12022/2018 dated 09.8.2018. According to the counsel for the applicant, the Complaint Committee ought to have conducted inquiry as per the provisions contained in the OM issued by the DoPT dated 16.7.2016 which clearly stipulates that the inquiry shall be held as far as possible in accordance with the procedure under Rule 14 inquiry. The Hon'ble Madras High Court in the case of Union of India & Anr. vs. The Registrar, CAT & A.Loganathan had clearly held that the inquiry contemplated under the CCS (CCA) Rules has to be followed in letter and spirit even in case an inquiry is conducted by CCC also. In this case, even from the reply filed by the respondents it can be seen that the CCC has not given any opportunity to cross examine any of the witnesses. It is also clear from the statement that the copy of the complaint was also not provided to the applicant for defending his case.
6 OA 810/2014
5. On the other hand, counsel for the respondents would content that all opportunities were given for proving the case of the applicant and there is no Miscarriage of justice. According to him the inquiry report filed by the CCC has to be taken as inquiry report and the applicant was proceeded with disciplinary action.
6. We have carefully perused the pleadings and annexures produced by the applicant in this case. On going through the report of the CCC produced as Annexure A1, it can be seen that 14 witnesses were examined by the CCC and it is mentioned in detail in the report. But it is pertinent to note that there is absolutely no mention regarding the presence of the delinquent official, when the witnesses were examined and there is absolutely no record to show that the applicant was offered an opportunity to cross examine the witnesses. The steps to be followed for conducting inquiry in case of allegation of sexual harassment are laid down in O.M.F.No.11013/2/2014-Estt(A-III) of DOP&T dated 16.7.2016 which clearly stipulates that such inquiry shall be held as far as possible in accordance with the procedure for Rule 14 inquiry. Further as per DGP&T letter No.151/4/77-Disc-II, dated 16.11.1980 it is 'desirable' that enquiries against ED Agents follow Rule 14 of CCS (CCA) Rules.
7. From the above, it can be seen that the Hon'ble High Court has held that the inquiry contemplated by the CCC should also in letter and spirit follow the procedure prescribed under Rule 14 inquiry and also in accordance with the DoPT Circular dated 16.7.2016. It is also mentioned in the DoPT circular that it is desirable that any inquiry against ED agents should also follow the procedure for inquiries under Rule 7 OA 810/2014 14 of CCS (CCA) Rules. In this case there is absolutely no mention regarding the reasons for denial of cross examination and non-supply of copy of the complaint etc. to the applicant. On reading Annexure A1, it can be seen that there is no mention regarding the opportunity given for cross examination and furnishing of copies to the applicant. In this circumstances, it is clear that the inquiry conducted by the CCC has seriously prejudiced the applicant in his defence. So, the applicant is entitled to get the relief as prayed for.
8. In the result, the order passed by the Disciplinary Authority removing the applicant from engagement dated 28.5.2013 including Corrigendum issued by the 3 rd respondent on 03.6.2013 is quashed. The respondents are directed to give the applicant an opportunity to cross examine all the witness examined by the CCC after furnishing him a copy of the complaint, also allow time to adduce his defence evidence and thereafter, the Disciplinary Authority will take a decision on the complaint filed against the applicant. Needless to say that the above procedure should be completed within a period of 6 months from the date of receipt of a copy of this order.
9. With the above direction the OA is allowed. No order as to costs.
(P.Madhavan) (R.Ramanujam)
Member(J) Member(A)
30.10.2018
/G/