Central Administrative Tribunal - Ernakulam
Dinesh Kumar G S vs M/O Defence on 24 April, 2024
`CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00425/2017
Wednesday, this the 24th day of April, 2024.
CORAM:
HON'BLE Mr. JUSTICE K.HARIPAL, JUDICIAL MEMBER
HON'BLE Mr. K.V.EAPEN, ADMINISTRATIVE MEMBER
G.S Dinesh Kumar, Aged 52 years, S/o G. Sivadasan Nair
Chargeman (Radio), Naval Ship Repair Yard (NSRY) Kochi,
Residing at Sreevalsam, Aroor, Alappuzha Pin-688534
- Applicant
[By Advocate: Mrs.Shameena Salahudheen]
Versus
1. Internal Complaints Committee (ICC) Rep. by Presiding Officer
Smt. C.Jaya, Assistant Director (OL) Headquarters, Southern
Naval Command, Kochi-682004
2. The Flag Officer Commanding - in chief
Southern Naval Command, Kochi-682004
3. Smt. S.Maya, Radio Fitter (SK), Planning and Production
Control Department, NSRY, Naval Base, Kochi-682004.
4. Admiral Superintendent of Yard, NSRY
Naval Base, Kochi-682004.
- Respondents
[By Advocates: Mrs. Latha P.K., ACGSC for R1,R2 and R4
Mrs.K.V.Bhadra Kumari for R3]
The application having been heard on 02.02.2024, the Tribunal on
24.04.2024 delivered the following:
O.A.425/2017 2
ORDER
Justice K.Haripal Applicant is a Chargeman (Radio) in Naval Ship Repair Yard, NSRY, in the Southern Naval Command, Kochi. He is aggrieved by Annexure-A1 report of the Internal Complaints Committee, ICC, which was made on the basis of Annexure-A2 complaint given by the 3 rd respondent alleging sexual harassment at work place. The Annexure-A2 complaint was referred to the ICC. His reply, Annexure-A3, was obtained and the ICC made enquiry and gave Annexure-A1 report. Based on the finding in Annexure-A1 report that there is 'iota of truth' in the complaint, the 2 nd respondent decided to initiate action against him under Rule 16 of the CCS(CCA) Rules. Aggrieved by the same, the applicant has approached this Tribunal for quashing Annexures-A1 and A5, to declare that he is not guilty of any misconduct under Rule 3(1)(iii) of CCS(CCA) Rules, to declare that the enquiry conducted by the ICC is not proper and to direct the respondents to exonerate him of the charges made in Annexure-A5 and drop all proceedings against him.
2. According to the applicant, Annexure-A1 report is illegal, O.A.425/2017 3 unreasonable and was prepared without proper application of mind. It suffers from errors of law and facts apparent on the face of records and is liable to be interfered with. The committee did not consider the huge delay in making the complaint. The applicant has categorically denied the allegations against him. According to him, he leaves a very good track record, he is strict in his duties and was not vulnerable to any of the situations and that such a complaint was made as a part of concocted move to tarnish his image and to harass him. The report was not made after proper adjudication of the issue. The contentions were not taken into account. He was not given opportunity to cross examine the witnesses. The statement of witnesses were not appreciated in proper perspective. The report is vague and does not reveal any act of misbehaviour or sexual harassment on the part of the applicant. The witnesses of the applicant were not examined by the committee and therefore, Annexures-A1 and A5 cannot stand scrutiny.
3. The official respondents 1,2 and 4 have opposed the prayers. According to them, on receipt of complaint from the 3 rd respondent the O.A.425/2017 4 matter was referred to the ICC as provided under the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013, hereinafter referred to as the Act, and thus notices were given to the applicant and also to the complainant, the 3 rd respondent; after conducting enquiry and also taking the version of numerous personnel associated with both the applicant and the 3 rd respondent and evaluation of facts, the committee found that there was 'iota of truth' in the complaint and then gave Annexure-A1/R4 report, which was served on the applicant. When Annexure-A5 was served on him, he gave Annexure- A6, which is under consideration of the disciplinary authority. Pending consideration of Annexure-A6 representation, such an O.A. is premature and therefore it is sought to be dismissed on that ground alone.
4. According to the respondents, on receipt of the complaint, the committee had looked into the allegations. Initially, conciliatory efforts were made as provided under the Act. When it failed, he was asked to give his reply. That reply was considered and the committee examined witnesses associated with both the applicant and the 3 rd O.A.425/2017 5 respondent and with the available facts and circumstances and records, came to the conclusion that there is truth in the complaint. In accordance with the laid down procedure, an enquiry was conducted by the ICC and its report was forwarded to the disciplinary authority and that was how Annexure-A5 memorandum was issued to the applicant. So, according to the respondents, the O.A. is only to be dismissed.
5. The 3rd respondent, the defacto complainant also filed a reply opposing the contentions in the O.A. According to her, on the basis of repeated instances of harassing her at work place, she gave Annexure-A2 complaint to the Chairperson, Women Cell, which was enquired into. According to her, she was suffering much at the hands of the applicant and his cronies. Numerous instances have been pointed out by her. The first of such was the incident happened on 24.12.2014. She had joined the office as Radio Fitter (SK) only on 03.10.2014. on 24.12.2014, while she was sitting in her chair, the applicant had reached near to her and went to her table touching his jaws and lips on her cheeks trying to kiss her pretending to take his mobile phone, which was kept on the table. O.A.425/2017 6 She was shocked and pushed off his face and stood up. The matter was informed to Mr.V.R.Sajeevan Pillai, another Chargeman. The second incident was on 16.02.2005. At that time, when painting work in the section was in progress, the applicant had intentionally hit his hand on her breast, then she responded in an angry tone. Thereafter, the applicant became very spiteful towards her and threatened that he would handle her later. He became very revengeful and tried to humiliate her and behaved in a harsh manner. Himself and his friends started acting against her; under his influence, she was not allowed to work overtime. Once one Pradeep Kumar, Chargeman had locked the HF- II annex room, where ladies staff used to take lunch, as per the instructions of the applicant. Similarly, it is stated that she was treated as an untouchable. Again, an instance has been pointed out that when she had rejoined after availing Child Care Leave, they tried to spread canards that she was roaming around with one male staff in the office. It is also stated that when an amount of Rs.16,500/- was lost from the custody of Smt.Usha Sugunan, a colleague of the applicant and the respondent, the O.A.425/2017 7 applicant wanted to brand her as the thief and thus she made Annexure- A2 complaint unable to withstand the continuous harassment meted out to her in the office. It is stated that at one point of time, she had even thought of ending her life. She has stuck to the position that the applicant had caused her sexual harassment as defined in the Act and the contentions urged by the applicant are incorrect.
6. With regard to the Annexure-A1/R4 report, it is stated that on getting the report she gave a representation on 20.02.2017 stating that the punishment recommended on the applicant is too flimsy, that stringent penal action should be taken against him, which is also pending with the respondents. That representation has been produced as Annexure-R3(1).
7. The applicant filed a rejoinder reiterating that he is innocent, he has been harassed on the basis of false and frivolous complaint raised by the 3rd respondent, no such incident has happened, the delay in filing Annexure-A2 is not explained, the committee has erred in making recommendations and therefore, he has prayed for allowing the reliefs. O.A.425/2017 8
8. We heard Smt.Shameena Salahudheen, learned counsel for the applicant, Smt.P.K.Latha, learned Additional Central Government Standing Counsel for the respondents 1,2 and 4 and Smt.K.V.Bhadra Kumari, learned counsel for the 3rd respondent.
9. According to the learned counsel for the applicant, it is very patent that the allegations are false. After a long lapse of time, the 3 rd respondent was conveniently making a frivolous complaint against the applicant. There is union rivalry between the applicant and the 3 rd respondent and the 3rd respondent has been made a tool by his opponents. On our query it was stated that the applicant does not belong to any union. He has put in more than 33/34 years of service and is due to retire next year. The witnesses listed by the applicant were not called by the committee. There are numerous procedural lapses in the enquiry. The reasons for the delay is not stated. The enquiry report is frivolous and shallow. Annexure-A5 cannot stand scrutiny.
10. The learned counsel for the applicant also relied on the decision in Sibu v. Air India Limited [(2016) 2 KLT 374] and said that what O.A.425/2017 9 is given under Section 11 is not a preliminary report. Since there is violation of principles of natural justice, Annexures-A1 and A5 are liable to be quashed.
11. On the other hand, the learned Standing Counsel as well as the learned counsel for the 3rd respondent disputed the contentions. According to them, there is provision for preferring appeal against Annexure-A5. Even though the applicant wanted to invoke Section 18 of the Act, no appeal is shown to have been preferred. This O.A. cannot be an appeal under Section 18 of the Act.
12. According to the learned counsel for the 3 rd respondent, the applicant is a very powerful person in NSRY. When the first incident had happened, the 3rd respondent had just joined as an employee and was unable to make any complaint against his unruly behaviour. At the second time also, she was hesitant to file any complaint. But when the harassment and iltreatment continued unabated, she thought of alerting the ICC and that was how Annexure-A2 was submitted. The learned counsel also said that having found that the applicant is guilty of sexual O.A.425/2017 10 harassment at work place, the mere recommendation for giving a warning is too trifle and that the O.A. is only to be dismissed.
13. Before going into the rival contentions, it is appropriate to say that the Act was enacted for the purpose of protecting women from sexual harassment at work place and prevention and redressal of complaints. As we are aware, before the introduction of the Act, there was no avenue to redress grievance of any act of sexual harassment or misbehaviour against woman employees and that was how the decision in Vishaka & others vs State of Rajasthan & others [AIR 1997 SCC 3011] was rendered by the Hon'ble Supreme Court, giving detailed guidelines. Thereafter, on the basis of the direction issued by the Apex Court, such an Act was passed in 2013.
14. The Act defines what is sexual harassment. Section 2(n) states thus:
"(n) "sexual harassment" includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:--
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or O.A.425/2017 11
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;"
15. In this connection, it is important to reproduce Section 3 of the Act also, which reads thus:
"3. Prevention of sexual harassment.
(1) No woman shall be subjected to sexual harassment at any workplace.
(2) The following circumstances, among other circumstances, if it occurs, or is present in relation to or connected with any act or behavior of sexual harassment may amount to sexual harassment:--
(i) implied or explicit promise of preferential treatment in her employment; or
(ii) implied or explicit threat of detrimental treatment in her employment; or
(iii) implied or explicit threat about her present or future employment status; or
(iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or
(v) humiliating treatment likely to affect her health or safety."
16. As noticed earlier, the proceedings against the applicant had O.A.425/2017 12 originated on Annexure-A2 complaint given by the 3 rd respondent before the Chairperson, Women Cell, Naval Base, Kochi. In that complaint it is stated that she had joined the NSRY on 03.10.2014 and the first instance of complaint had happened on 24.12.2014 when the applicant had tried to kiss her at her cheek. She had reported the matter to one V.R.Sajeevan Pillai, another Chargeman, who took it very lightly. Secondly, on 16.02.2015, he had intentionally hit his hand on her breast; then she had retorted angrily and then onwards the applicant had been behaving hostile to her.
17. It is further stated that thereafter, as a posture of revenge, the applicant had influenced the superiors not to grant her overtime work. He had indulged in numerous activities to defame and belittle her in front of colleagues, while working in adjacent offices. On her returning from child care leave, he had spread canards that she had been roaming around with a male colleague; then she was made a thief when Smt.Usha Sugunan, a colleague had lost an amount of Rs.16,500/- from her possession. So, according to the 3 rd respondent, she gave Annexure- O.A.425/2017 13 A2 complaint when it became very clear that she is unable to work in the office in a dignified manner, in order to abate further harassment.
18. The applicant gave Annexure-A3 reply denying all these contentions; he claimed that he leaves an unblemished record, had never tried to harass the 3rd respondent and that the allegations are false etc.
19. From the records it is clear that, initially, the ICC had tried to conciliate the matter. When the conciliation failed, the committee proceeded to take evidence. It examined numerous witnesses associated with the applicant as well as the 3rd respondent and then gave Annexure- A1/R4 report stating that there is 'iota of truth' in the complaint. In conclusion, it has reported as follows:
"8. In disposition of the case an enquiry was conducted by the committee and findings thereon are as appended below:-
(a) An unpleasant atmosphere was prevailing in the Radio Shop of NSRY(K).
(b) Few strange and undesirable happenings have occurred in the Radio Shop which come under the purview of the committee on prevention of sexual harassment of working women in the work place.
(c) The complainant reacted against the misbehavior of the O.A.425/2017 14 respondent and thus the respondent had a grudge against her.
(d) Later on, the complainant was accused of a money theft case which seems to be a fabricated one.
(e) Eventhough the respondent misbehaved with the complainant, in the initial stage she took it in a lighter sense.
But in continuation of that, her life in the office was made miserable by which she was forced to submit a written complaint before the committee after several months of the occurrence of these incidents.
(f) The above facts and mishappenings made the life of the complainant in office unpleasant and disturbing."
20. On evaluation of the facts, it concluded that there is truth in the complaint. It is further stated that, 'however, the delay occurred in submitting a written complaint by the complainant also has been viewed seriously by the committee. In the light of the above facts and figures, in order to provide a cordial and harmonious work environment for women at work place, it is recommended that the respondent be severely warned for the misconduct.'
21. The 3rd respondent has cited numerous instances of sexual harassment treatment meted out to her during the period from O.A.425/2017 15 24.12.2014 onwards. Two such instances, trying to kiss her on 24.12.2014 and on 16.02.2015 when he had tried to hit his hand on her breast, are clear instances of sexual advances made against her, which clearly fall within the definition of Section 2(n) of the Act.
22. Similarly, other instances that canards were spread against her that she was roaming around with Sajeev Kumar, a male staff in Marine drive and other places, that he had stood in front in denying her overtime and the dining hall used by women staff was locked at the instances of the applicant, that she was made a thief fabricating a case that the amount of Rs.16,500/- lost from the possession of Smt.Usha Sugunan was thieved by the applicant. These are also implied sexual harassments, falling within the ambit of Section 3(2) of the Act.
23. Annexure-A2 was submitted on 11.01.2016. It is pertinent to note that, as per Section 9 of the Act, such a complaint should be given within a period of three months from the date of the incident. Further it is stated that in case there are series of incidents, the complaint should be laid within a period of three months from the date of the last incident. O.A.425/2017 16 The 3rd respondent complained that she was made a thief fabricating a false case against her on 26.10.2015 and within three months, Annexure- A2 was given on 11.01.2016 so that prima facie it seems that the complaint was laid within the statutory period of three months provided in the Act.
24. The learned counsel submitted that even though serious allegations were raised against the applicant of sexual harassment happened on 24.12.2014 and 16.02.2015 she gave a complaint only on 11.01.2016, which is beyond the period of limitation. As stated earlier, the applicant has cited series of incidents in which either directly or deemed sexual harassment suffered by her and the Annexure-A2 was given within three months of the last such incident on 26.10.2015. It was specifically complained that the applicant had turned hostile against her after she had protested against the physical advances made against her on 16.02.2015.
25. It is pertinent to note that the applicant had joined the service of the NSRY as Radio Fitter only on 03.10.2014. The very first O.A.425/2017 17 instance had happened on 24.12.2014. At that time, the applicant was a senior member of the office having commenced service in 1987. The case of the 3rd respondent in Annexure-A2 and in the reply is that the applicant was working as superman and everybody was afraid of him; even though she had given oral complaints to her Supervisor Sajeevan Pillai, he took it lightly and wanted them to yield to the mischief of the applicant. The second incident had happened on 16.02.2015. These two instances were incidents violating chastity and modesty of a woman. It was not argued that those were not instances coming within the definition of Section 2(n) of the Act. After the second incident, the 3 rd respondent had retorted and responded very harshly and then onwards the applicant started behaving very rudely against the 3 rd respondent and that was how a bad atmosphere had evolved in the office as seen in Annexure-A1 report.
26. When Annexure-A5 was served on him, it was stated that he had preferred appeal under Section 18 of the Act, but copy of the appeal has not been produced. The learned counsel for the applicant wanted to O.A.425/2017 18 submit that this O.A. is the appeal as contemplated in Section 18. But this is not an appellate forum. From the O.A. itself, it is clear that this is an application filed under Section 19 of the Administrative Tribunals Act, 1985. So, this cannot be an appeal. Even otherwise, Annexure-A1 report was filed on 23.12.2016 and the O.A. was preferred on 30.05.2017. Section 18 provides that such an appeal should be preferred within a period of 90 days of the recommendation, that is Annexure-A1. So, even assuming that the O.A. is treated as an appeal, it is beyond time.
27. Moreover, the applicant is a civilian in the NSRY. There are separate provisions for filing appeal against such proceedings by a civilian employee. That has not been made use of.
28. There is absolutely no meaning in the contention that Annexure-A2 was submitted belatedly. It was filed within three months from the last incident, in which she was depicted as a thief in the office. Annexure-A2 is the culmination of a series of incidents, in which the 3 rd respondent was suffered to sexual harassment by the applicant. Therefore, the delay cannot be highlighted as a big issue. This aspect has O.A.425/2017 19 not been considered by the ICC in correct perspective and therefore, the rider in Annexure-A1 as if there is delay, cannot be accepted.
29. The applicant also wanted to convince the Tribunal that it is a false complaint. The applicant could not make out as to what is the motive in giving a false complaint against a senior male colleague in the office. As mentioned earlier, two instances of sexual harassment/physical advances made against the 3rd respondent have been stated by the 3 rd respondent, which cannot be described as false. Both are clear acts of outraging the modesty of a woman. No woman of self respect will raise false allegations affecting her modesty. Normally, women will think twice before raising such an allegation, especially against a male colleague. Here the continued persecution and pestering had compelled her to approach the authorities. Her failure in initiating action against the applicant after the first two offensives itself shows her hesitancy. We have no doubt that those instances would have enabled her to launch criminal prosecution against him attracting non-bailable offences. Moreover, the ICC has taken evidence and came to the conclusion that O.A.425/2017 20 there is truth in the allegation. It is an independent fact finding body. We do not find valid reasons to set at naught the conclusions arrived at by the Committee, after taking evidence.
30. It was contended that the principles of natural justice were not followed in giving Annexure-A1 report. It was also stated that he was not allowed to cross examine the witnesses. We do not find any substance in the contention. Had there been a charge under Rule 14 of the CCS(CCA) Rules, we would have taken this contention seriously. Here only Rule 16 proceeding is contemplated against the applicant, despite the fact that the allegations are very serious. Moreover, the ICC can adopt its own procedure for taking evidence. It is not an adversarial mode of taking evidence. After giving copy of Annexure-A2 to the applicant, his comments were called. The 3 rd respondent was also heard; when conciliatory steps failed, witnesses, who were found appropriate for the ICC, were examined before the committee and the report was filed after evaluating the oral testimony of witnesses. In the circumstance, the committee is not expected to give opportunity to the O.A.425/2017 21 applicant to cross examine the said witnesses. Therefore, there is no point in raising that there is violation of principles of natural justice.
31. ICC is an independent fact finding body. When the complaint was referred to it, initially it obtained the comments of the applicant, then conciliatory efforts were made, the statement of the defacto complainant was taken and then witnesses were examined and that was how the report was filed. Even though it is stated that the applicant had filed an appeal or wanted to file an appeal under Section 18, it seems that it has not yet been filed. Whatever it may be, Rule 16 proceedings were initiated against the applicant on the basis of the report of the committee and we do not find valid reasons to interfere with the steps initiated by the official respondents against the applicant.
32. Before parting with, it is appropriate to extract the following observations in Vishaka, quoted supra:
"3. Each such incident results in violation of the fundamental rights of 'Gender Equality' and the 'Right of Life and Liberty'. It is clear violation of the rights under Articles 14, 15 and 21 of Constitution. One of the logical consequences of such an incident is also the violation of the victim's fundamental right O.A.425/2017 22 under Article 19(1)(g) 'to practice any profession or to carry out any occupation, trade or business'........."
Here, it was a novice pitted against a senior colleague. There are reasons to believe that the applicant was in a vantage position, himself and his cronies were trying to silent a raw junior female colleague who did not yield to his lascivious designs or rather protested against them. In the setting, no female employee will be able to work fearlessly.
The Original Application lacks merits and is dismissed. No costs.
(Dated this the 24th April, 2024)
K.V.EAPEN JUSTICE K.HARIPAL
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
ds
O.A.425/2017 23
List of Annexures
Annexure A-1: A true copy of the report communicated to the
applicant dated 23rd December 2016
Annexure A-2 : A true copy of the letter no.CS.2690/5/CC/(2) (i) dated 9th March 2016 Annexure A-3: A true copy of the reply submitted by the applicant dated 21/3/2016 Annexure A-4: A true copy of the Notice dated 14/6/2016 Annexure A-5: A true copy of the Memorandum dated 24/4/2017 Annexure A-6: A true copy of the Reply submitted by the Applicant dated 8/5/2017 Annexure A-7: A true copy of the Promotion Order of the Applicant Annexure R-1: Copy of HQ SNC letter CS 2690/5/CC (2) (i) dated 03 Mar 16 Annexure R-2: Copy of HQ SNC letter CS 2690/5/CC (2) (i) dated 03 Mar 16 Annexure R-3: Copy of HQ SNC letter CS 2690/5/CC (2) (i) dated 09 Mar 16 Annexure R-4: Copy of enquiry report of ICC dated 23 Dec 16 Annexure R3 (1): True copy of the representation submitted by the 3rd respondent before the Assistant Director, Head Quarters, Southern Naval Command dated 20/2/2017.