Central Administrative Tribunal - Mumbai
Vijay Gajanan Mane vs Environment And Forest on 10 July, 2024
1 OA No. 860/2023 CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAI BENCH, MUMBAI ORIGINAL APPLICATION NO.860/2023 | Date of Decision: 10 July, 2024 CORAM: HON'BLE MR. JUSTICE M.G.SEWLIKAR, MEMBER (J) HON'BLE MR. SHRI KRISHNA, MEMBER (A) Mr. Vijay Gajanan Mane, Age: 41 years, Occu. Service, Deputy Conservator of Forests, (Working Plan), Chandrapur, Employee |.D. No.MS/416, Having Office address and presently working at: Office of Deputy .Conservator of Forest -Working Plan, Director, Chandrapur Forest Academy of Administration, Development & Management, Chandrapur Mul Road, | Chandrapur442401.Email:vijavmane47 @gmail.com Mobile:7720000606 « Applicant (By Advocate Mr. R G Walia a/w Mr, Mohite V. Vishwajeet) VERSUS 1. Union of India, through it's Secretary, Department of Envj- ronment, Forest and Climate Change, Indira Paryavaran Bhawan, Jorbagh Road, New Delhi- 110003. 2. The State of Maharashtra, Through its Principal Sec- retary, Revenue and Forest Department, Mantralaya, Mum- bai -- 32. 3. KYZ, Range Forest Officer, Kadegaon At Post Tir- wade, Tal. Bhudhargadh, Dist. Kolhapur, 416210 (private. respondent) ..Respondents 2 OA No. 860/2023 (By Advocate Mrs. Mugdha Chandurkar a/w Mrs. Amita Chaware & Associates) . ORDER Per: Justice M.G. SEWLIKAR, MEMBER (J)
This is an application under Section 19 of the Administra- tive Tribunals Act whereby the applicant has sought the relief of seiting aside the Report of Internal Complaint Committee (ICC) dated 25" September, 2023.
2. | Facts in nutshell are that the applicant was appoint- ed as the Probationary Assistant Conservator of Forest, Group ~ A (Junior Grade) on 12% July, 2011. Applicant was promoted to the Indian Forest Service by Order dated 28" April 2021 and was posted as the Deputy Conservator of Forest. The Com- plainant is the Range Forest Officer (Territorial), at Kadegaon, Palus, District Sangli. She was working within the jurisdiction and under the control of the office of the applicant.
3. The complainant lodged F.I.R against the applicant on 6" May, 2022 on the basis of which C.R. No. 128/2022 came to be registered with M.1.D.c. Kupwad Police Station un- 3 OA No. 860/2023 der Section 354 and 354(A) of the Indian Penal Code, 1860. It is alleged in the FIR that the complainant had been to the Divi- sional office at Kupwad on 28" April, 2022 for the official work. On that day, at about 4:45 pm, the complainant visited the of- fice of applicant for the official work where the applicant al-
legedly outraged the modesty of the complainant. On 7" May, 2022, the complainant filed a complaint application to the Chief
- Conservator of Forest, (Territorial), Kolhapur for initiating strict action against the "applicant.
| 4. ~The Chief Conservator of Forest, (Territorial), Kol-
hapur recorded the statement of the applicant on 12" May, 2022 and 13" May, 2022. The applicant denied all the allega-
tions levelled against him by the complainant. After completion of investigation, chargesheet came to be lodged under Section | 173 of Code of Crimina! Procedure, 1973 on 14% June, 2022 before Judicial Magistrate First Class, Miral, Sangali and the case is registered as Regular Criminal case no. 2241/2022. ;
4 OA_ No. 860/20233. | The applicant contends that he addressed letters dated 11" May, 2022, 12" May, 2022, 19" May, 2022, 234 May, 2022, 26" May, 2022 and 30" May, 2022 to the Deputy Conser- vator of Forest, Sangli and sought information which was never Supplied to the applicant, On 7* October, 2022, the applicant addressed a letter to Chief Conservator of Forest (Territorial), Kolhapur and informed the objections about the various works at Kadegaon Palus Forest Range at the relevant time and also annexed the documents Supporting to the said letter. The appli- cant contends that by Government Order dated 25" January, 2023, the appointment of Chairperson and members of the ICC was notified. The applicant made a representation dated 24 February, 2023 to the Principal Secretary Revenue and Forest, 'Government of Maharashtra, Mumbai stating therein that how a faise case is filed against the applicant and requested to stay the proceedings of the Committee till the conclusion of the trial of Regular Criminal case no. 221/2022.
6. The applicant was served with the notice dated gt May, 2023 by the ICC constituted under the Sexual Harrasment 5 OA _ No. 860/2023 of Women at Workplace (Prevention, Prohibition and Redres-.
sal) Act, 2013 (PoSH Act, 2013) and the applicant was asked to remain present before the ICC for the inquiry initiated on the complaint of the complainant. On 17" May, 2023, the applicant was served with copy of the complaint. The applicant appeared before the ICC on 18" May, 2023 and denied the allegations made by the complainant. The applicant contended that the _ complainant has made false allegations against the applicant as complainant was apprehending that the irregularities of the work of the compiainant would be exposed which would result the action against her and, therefore, with the help of then R.F.O., Shirala, the complainant falsely implicated the appli-
cant. The applicant asked for the CDR, location etc., and re- © quested to transfer the complainant outside the Revenue Divi- sion. The applicant had made a request to the ICC to stay the proceedings of the ICC till the conclusion of the trial of Regular Criminal case no. 221/202. The applicant appeared before the ICC on all the dates ie. on 18" May, 2023, 30" May, 2023, 22"
June, 2023, 19" July, 2023, 24 August, 2023 and 22" August, 6 OA No. 860/2023 2023. The applicant further contends that he was never sup- plied the statements of the applicant and the complaint record- ed by the ICC, the depositions or evidence of witnesses exam- ined by the ICC, the material and evidence summoned and col- lected during the proceedings of the icc, the information or other relevant material relied upon by the ICC, the Opportunity of cross examination was not afforded by the ICC to the appli- ~ cant. Thus, there was gross violations of principles of natural justice and the opportunity of fair hearing was not afforded to the applicant by the ICC which resulted in Serious miscarriage of justice.
7. The applicant further states that thereafter the appli- cant was served with the communication dated 3" October, 2023 along with the report dated 25" September, 2023 of the Icc holding the applicant guilty of the sexual harassment of the complainant and recommending the Disciplinary Authority to initiate the disciplinary action for major penalities as prescribed under CCA Rules. After receiving the report, the applicant ad-
dressed representation dated 17% October, 2023 to the Princi-
7 OA No. 860/2023ple Secretary, Forest Department, Government of Maharashtra intimating that he would be filing the appeal before the Appro-
priate Court or Tribunal. The applicant by way of another repre- sentation dated 17 October, 2023 requested the Principal . Secretary, Forest Department, Government of Maharashtra to provide the information and documents to enable him to file the appeal. However, no such information has been provided to the applicant The applicant has, therefore, filed this OA for seeking following reliefs:-
"8. A) This Original Application may kindly be allowed.
B) This Hon'ble Tribunal may graciously be pleased to call for the records of the case from the Respondents and after examining the same quash and set aside the findings, conclusions and the recommendations of the Report dated 25.09 2023 of the Internal Complaints Committee (ICC) constituted under the provisions of The Sexual Harass-
-ment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 in Case No. IFS/2022/CN-53/F-
7. | C) This Hon'ble Tribunal. may graciously be pleased to re-
- Strain the Respondents from initiating, commencing and / or continuing any action against the Applicant till the con- clusion of the Criminal Trial pending before the JLM.F.C., Miraj, Sangali in view of the similar set of facts involved in. the matter. ; . a D) This Hon'ble Tribunal may. graciously be pleased di- rect.the Respondents to the concerned Deputy Conserva- tor of Forest to provide the Applicant all the. required infor-
8 OA No. 860/2023mation and the documents to enable him to defend his case.
E) This Hon'ble Tribunal may graciously be pleased to di- rect the Respondents to complete the enquiry of all cases mentioned by the Applicant within 30 days in the presence of the Applicant.
F) To grant any other relief as the applicant may deem fit."
«8B. The respondent no. 2 filed its reply contending that inquiry has not yet been initiated against the applicant. After re- ceipt of complaint, the Forest Department conducted a prelimi- nary enquiry at the administrative level and submitted a report to the Government on 47! May, 2023 on which the Govern- ment issued transfer order of the applicant dated 24" May, . 2022. It is further contended that the after appointment of the members of the Internal Complaint Committee, the Original complaint filed by the complainant to her superiors was referred to this Committee. The Internal Complaint Committee compiet- ed the hearing process between 18" May, 2023 to 17m August, 2023. From the Report of the ICC, it is Clear that the applicant has been given opportunity from time to time to submit the clar- ification or to add any additional evidence with respect to earlier hearings. The Committee has also given opportunity to the 9 OA No. 860/2023 complainant and the applicant to present their views based on preliminary findings. He was also asked whether there was any error in the investigation process or whether he wanted to pro- vide any additional information before the Committee. The Committee also asked the applicant whether he wanted to sub- mit any further evidence / document in support of his defense. The applicant did not raise any objection regarding the inquiry process and also has not given any written application with re- spect to the procedure conducted by the ICC. From the report of the Committee, it is clear that the applicant was afforded full opportunity and principles of natural justice have been afforded by the ICC. Personal hearing was also given to the applicant. , The responses of the complainant / respondents were recorded and their signatures were obtained. It means. the applicant signed all the related documents while hearing of the case be- fore the Committee. The Chairman of the ICC sent a detailed inquiry report to the Principal Secretary (Forests) Revenue and Forest Department, Mantralaya, Mumbai vide letter dated 25"
September, 2023 with a copy to both complainant as.well as re-10 OA No. 860/2023
Spondent. From the report of the ICC, it is clear that the appili- cant has sexually harassed the complainant. It is further con- tended that respondent no. 2 will take decision to initiate de- partmental Proceedings against the applicant and inquiry Officer as well as Presenting Officer will be appointed in this case, 9, The applicant filed rejoinder, He contended that prin- . Ciples of natural justice were not followed. The statements of witnesses and complainant were not provided to the applicant. | Even copy of his own statement recorded by the Committee was never Supplied to the applicant though his signatures were taken on the same. The ICC has acted as a prosecutor instead of a judge and they have only indulged in examination and cross-examination of the applicant which shows that ICC was completely biased and unfair. The CCTV footage referred in the Said Report was also not provided to the applicant. He contend- ed that the Committee has gone out of its Way to collect materi- al which was never supplied or communicated to the applicant at any point of time. The names of the witnesses called by the 11 QA No. 860/2023 ICC were never disclosed to the applicant nor their statements were supplied to him. Committee has recorded that "on the ba- sis of evidence received, it was decided that some of the wit- nesses related to the case should testify in their interest with their names Kept confidential." In the fifth hearing, some wit-
nesses were called and their names were withheld.
10. Respondent no. 3, the original complainant filed her reply and contends that the applicant himself conducted cross-exam- ination of the witnesses and was present on all the dates of the inquiries. During the hearing, complainant did not complain about non-visit of any document. He making allegations of ir- regularities just because she has complained against the appli-
cant. The applicant being the senior and reputed officer of re- spondent no. 3, he had every opportunity to put forth the irregu- larities in her work. Just to divert the attention of the ICC, he is putting forth 'some concocted stories. The applicant did not raise any objection when he was asked by the Committee whether the proceedings were conducted properly or not. She has, therefore, prayed for the dismissal of the application.12° OA No. 860/2023
11, Applicant filed rejoinder to reply of respondent no. 3. The applicant contended in the rejoinder that the complainant _ had made false allegations against the applicant. The chamber -- of the applicant has been completely covered by CCTV cam-
- eras, The applicant could not nave in his wildest dream done anything as alleged by respondent no. 3. Respondent no. 3 had on her own, without being called to the applicant's office, visited the applicant's office for getting some vouchers signed which the applicant refused. The FIR was registered after about nine | days of the alleged incident. No other new point has been raised by the applicant in the rejoinder.
12, We have heard learned counsel for the applicant, Mr. R G Walia and learned counsel for the respondent no, 2, Mrs. Mugdha Chandurkar and respondent no. 3, Mrs. Amita Chaware & Associates.
13. Learned counsel for the applicant submitted that the scheme of the Act shows that the inquiry has to be done by the Internal Complaint Committee (ICC). Section 11 of the PosH 13° OA No. 860/2023 Act mandates that the inquiry has tobe done by the ICC in ac- cordance with the Service Rules applicable to the respondents. In the case at hand, the complainant and the applicant both are Centrai Government Servanis and they are governed by the Al India Service Rules (AIS Rules). He submits that in terms of Rule 14(2) proviso of CCS(CCA) Rules, the ICC has to be the Inquiring Authority. The Inquiring Authority's Report is treated as final report and the only job the Disciplinary Authority | is left with, is to impose punishment on the delinquent. He submits that the same proviso has been appénaed to the Ruie 8(2) of the All India Service Rules. He contended that in terms of this. Rule, the powers of Disciplinary Authority have been taken away so far as conducting of inquiry is concerned and it has to be conducted by the ICC. Therefore, the ICC has to follow the principles of natural justice while conducting the inquiry. He contended that the ICC has failed to follow the principles of nat- ural Justice. It has not conducted the full- -fledged inquiry but has prepared the preliminary report, He submitted that it is the right of delinquent to cross-examine the witnesses. The ICC has 14 QA No. 860/2023
-- failed to provide Opportunity of cross-examination of the wit- nesses. The ICC has withheld the names of some witnesses. When the Names of witnesses are withheid, the applicant will not be able to know the identity of the witnesses. He further contended that the ICC recorded the statements of the witness- es : whose names were 'not mentioned by the complainant. This shows that the Ioc instead of working as a quasi judicial au- thority has worked as a Prosecutor. He contended that the ICC relied upon the CCTV footage. However, the ICC did not pro- vide him the copy of footage. Some wit nesses were examined behind the back of the applicant. No evidence can be accepted by any judicial authority OF quasi Judicial authority unless it is tested on the touchstone of cross-examination of the witness- es. He submitted that copy of statements of witnesses were not _ Supplied to him. He contended that the complainant had com- mitted several irregularities. on account of which the com-
plainant apprehended that some action would be taken against her and to foreclose that she has filed this complaint with oblique motive. He argued that the ICC has failed to follow the 15 - OA No. 860/2023 principles of natural justice. The report is not a final report, therefore, on the basis of which the disciplinary authority can- not take any action. He placed reliance on the following case laws:!-
i) State of Madhya Pradesh vs Chintaman Sadashiva Vaishampayan, 1960 SCC Online SC 82.
li) Town Area Committee Jalalabad vs Jagdish Prasad and Ors., 1979 1 SCC 60.
iii) $.C.Girotra-vs United Commercial Bank, 1995 Supp (3) SCC 212.
| iv) Ministry of Finance and Anr. vs S.B.Ramesh, 1998 3 SCC 227, Vv) P. John Chandy & Co. (P) LTD. Vs John P. Thomas, 2002 5 SCC 90.
vi) State of. Uttar Pradesh vs Singhara Singh and Ors., 1963 SCC Online SC 23.
16 OA No. 860/2023vii) Hukam Chand Shyam Lal vs Union of India and Ors., 1976 2 SCC 128.
viii) M. P. State Agro Industries Development Corporation Ltal. And Ors vs Jahan Khan, 2007 10 SCC 88.
ix) Union of India and Ors. Vs R. Reddappa and Ors., 1993 4 SCC 269.
x) Central Administrative Tribunal, Mumbai Bench in OA No.453 of 2009 and 225/2010 in Anthony Rathnakumar VS Union of India and Ors.,
xi) Seema Lepcha vs State of Sikkim and Ors., 2013 74 SCC 647.
xil) State of Utlaranchal and Ors, Vs Kharak Singh, 2008 & SCC 23.
xiii) Shri Vilas V. Pawar vs. Union of India and ors. In OA No. 770 of 2023, CAT (Mumbai Bench).
17 QA No. 860/2023xiv) Vineeth V.V. Vs Kerala State Electricity Board Ltd.
(Kerala High Court).
xv) Union of India and Ors vs Parul Debnath and Ors.
SLP(C) No. 10496 of 2007(Supreme Court).
xvi) Kuldeep Singh vs Commissioner of Police and Oth-
ers, (1999) 2 SCC 10.
xvii) Bondar Singh and Others vs Nihal Singh and Others, (2003) 4 SCC 161.
xvill) Raj Bahadur Sharma (Dead) Through LRS. V Union of _ India and Others, (1998) 9 SCC 458.
xix) Medha Kotwal Lele and Others vs Union of India and Others, (2013) 1 SCC 317, Xx) Institute. of Hotel Management, Catering Technology and Applied Nutrition and Others versus Suddhasil Dey and Another, 2020 SCC Online Cal 3320 (Calcutta High Court).
18 OA No. 8600/2023XXxi) LS, Sibu, Officer, vs By Aavs. Shri N. Nandakumara Menon (St), 2016 SCC Online Ker 511,
14. _ Learned counsel} for the respondent no. 2 submitted that the ICC has followed the principles of natural justice at ey-
ery stage of the inquiry. She submitted that at every stage the applicant and the complainant were asked whether the proce-
dure followed was a proper p oceaure or not and whether they have any objection for the same. The applicant did not raise any objection at that time. She contended that the report of the icc shows that the applicant was given full Opportunity to put up his case. The ICC had recorded the statements of the wit-
- nesses in the presence of the applicant. The identity of two wit- nesses was withheld. The applicant did not complain about the same. The ICC asked the applicant whether he wanted to give any additional evidence or wanted to furnish any additional in-
formation. The applicant answered in the negative. If the appli-
19 OA_No.860/2023cant had any objection for the same, he should have asserted his right of cross-examination of the witnesses. He did not do $0. The report of the ICC shows that the members of the ICC questioned the applicant about the CCTV footage and got
- Cleared its doubts and the applicant was given opportunity to explain about the CCTV footage. The ICC also heard the argu- _Mments of the applicant and, therefore, it cannot be said that principles of natural justice were not followed. He submitted that after furnishing the report, the disciplinary authority will frame the charge and the applicant would get the opportunity to cross-examine all the witnesses. She submitted that the ICC followed the principles of natural justice and gave full opportu- nity to the applicant to explain his case. Thereafter, the ICC - 'has submitted its report. She submitted that the ICC is within its _ fight to withhold the identity of the witness under PoSH Act. icc, having regard to the circumstances of the case, can deny cross-examination of any witness by the delinquent. She sub-
mitted that the applicant, therefore, was given maximum possi-
20 QA No. 860/2023ble Opportunity during the conduct of the inquiry. She placed reliance on the following cases:-
(i) Dethi University and Another ys. Bidyug Chakraborty & Ors. SLP (Civil) No. 23060/2009 (Supreme Court).
(ii) Hira Nath Mishra & Ors. vs. The Principal Rajendra Medical College, Ranchi & Another, (1973) 1 SCC 805.
(iii) Dr. R K Pachauri versus Union of India & Ors. RCA DJ No. 5/2023.
15. _ Learned counsel for the respondent no. 3 Ms. Amita Chawar adopted the arguments of Mrs. Mugdha Chandurkar, learned counsel for the respondent no. 2.
16. We have given thoughtful consideration to the sub- missions made by the learned counsels for the respective par-
ties.
17. _ From the arguments of the parties, following points arise for determination:-
21 OA No. 860/2023(i) . What is the nature of inquiry the ICC is supposed to con-
duct whether a preliminary inquiry or final inquiry.
(ii) Whether the applicant has right to cross-examine the wit-
nesses.
- (ili) Whether the inquiry conducted by ICC is preliminary or fi-
nal.
(iv) Whether compliance of second proviso to Section 11 of the PoSH Act is mandatory when both parties are Central Gov-
ernment Empioyees,
18. - It is not in dispute that both the parties are Central Government employees and they are governed by All India.
Service Rules (AIS Rules).
19. Before proceeding further, it would be apposite to take a resume of the provisions of the PoSH Act. Sexual Ha- rassment at workplace is considered violation of womens, right . to equality, life and liberty. It creates-an insecure and hostile | work environment, which discourages women's participation in 22 OA No. 860/2023 work thereby, adversely affecting their social and economic empowerment. Constitution of India embodies the concept of equality under Articles 14 and 15 and prohibits discrimination On grounds of religion, race, casie, sex or place of birth or any of them. Article 19(i)(g) confers the fundamental right on all Citi- zens to practice any profession or to Carry out any occupation, . trade or business. This right presupposes availability of an en- abling civil and sécured environment for women. Article 21, which relates to life and Personal liberty, includes the right to live with dignity and in the case of women, it means that they must be treated with due respect, decency and dignity at the workplace. The Supreme Court in the case of Visakha & Ors vs State of Rajasthan & Ors, (1997) 7 SCC 323. reaffirmed that sexual harassment at workplace is a form of discrimination against women and recognize that it violates the constitutional right to equality and provided guidelines to address this issue pending enactment of a suitable litigation.
20. In terms of directions of Supreme Court in Visakha case (supra), the PoSH Act has been Promulgated. Chapter | of the 23 OA No. 860/2023 PoSH Act deals with Short title, extent and commencement and definitions. Chapter Il deals with constitution of Internal Complaints Committee. Section 4 of the Chapter ll of the PoSH Act states that every employer of a workplace shall constitute a . committee to be known as_ the "Internal Complaints Committee". Sub-section 2 speaks of the members to be nomi- _ nated by the employer of the Internal Complaints Committee. :
_ Section 5 speaks about issuance of notification by the appropri- ate. government for the appointment of District Magistrate or Additional District Magistrate or the Collector or Deputy Collec- tor as a District Officer for every District to exercise Powers or discharge functions under the PoSH Act. Section 6 speaks about constitution of Local Committee. it states that every Dis- | trict Officer shall constitute in the concerned district, a commit- tee to be known as the Local Committee to receive complaints of sexual harassment from establishments where the Internal Committee nas not been constituted due to having less than 'ten workers or if the complaint i IS against the > employer himself.24 OA No. 860/2023
Section 7 Speaks of the composition, tenure and other terms and conditions of Local Committee.
21. Chapter 4 of the PoSH Act deals with the complaint. Section 9(i) Speaks of the complaint of sexual harassment, It _ States that any aggrieved woman may make, in writing, a com-
plaint of sexual harassment at workplace to the Internal Com-
mittee may before initiating an inquiry under Section 11 and at the request of the aggrieved woman take Steps to settle the matter. between her and the respondent through conciliation, Chapter Vv deals with inquiry into compiaint. Section 14 deals with inquiry into complaint. Section 11 contemplates that where the respondent is an employee, the Internal Committee or the Local Committee shall proceed to make inquiry into the com- plaint in accordance with the provisions of the service rules ap- plicable to ° the respondents and where no such rules exist, in such manner as may be prescribed. in case of domestice work- | 95 OA _No.860/2023 ers, the Local Committee shall, if orima facie case exist, for- ward the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code. Section 12 speaks about action during pendency of in- quiry. It states that during the pendency of an inquiry on a writ- ten request made by the aggrieved woman, the Internal Com- mittee may recommend to the employer to transfer the ag- grieved woman or the respondent to any other workplace or grant leave to the aggrieved woman up to a period of three months or grant such other relief to the aggrieved woman as may be prescribed. Section 13 speaks about Inquiry report by Internal Committee or the Local Committee as the case may be. On the completion of the inquiry under PoSH Act, the Inter- nal Committee or the Local committee shall provide a report of _ Its findings to the employer or to the District Officer within a pe- riod of ten days from the date of completion of such inquiry. Sub-section 3 of Section 13 states that where the Internal Committee or the Local Committee arrives at the conclusion that the allegation against the respondents has been proved, it 26002 OA No. 8860/2023 shall recommend to the employer to take action against the 'Tespondent in | accordance with Section 13(3)(1) & (1) of PoSH Act. Sub-Section 4 of Section 13 of PoSH Act speaks about the action to be taken by the employer upon the recommendation within sixty days of its receipt by him. Section 14 of PoSH Act Speaks about punishment for false or malicious complaint and false evidence. Section 15 Speaks about determination of com- pensation. Section 16 Speaks about prohibition of Publication or making Known conients of complaint and inquiry proceedings. , Section 17 speaks about penalty or publication Or making known contents of complaint and inquiry proceedings. Section 18 speaks about appeal to be preferred by the person ag- grieved from the recommendations made under sub-section (2) of section 13 or under clause (i) 0 or clause (ii) of section 13 etc. "This appeal has to be preferred within a period of ninety days _of the recommendations in terms of section 18(2) of the PoSH Act. Section 19 speaks about duties of employer and Section 20 speaks about duties and power of District Officer 27 QA _No.860/2023 . 22, From these provisions, it.is clear that complaint has to be made to the Internal Complaint Committee in terms of Section 9 of the PoSH Act. Section 11 of the PoSH -Act states that where the respondent is an employee, the Internal Com- plaint Committee or the Local Committee shall proceed to make inquiry into the complaint in accordance with the provi- sions of the Service Rules applicable to the respondents and where no such Rules exist, in such manner as has been pre-
scribed.
23. In the case at hand, undoubtedly, the applicant and 'the : respondents are government servants and, therefore, they are governed by All India Service Rules. Rule 8 of AIS Rules deals with procedure for imposing major penalties. Rule 8(ii) is rele-
vant for our purpose which reads thus:-
"8(2) Whenever the disciplinary. authority is of the opin- ion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a member of the Service, it may 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.28 QA No. 8600/2023
Provided that where there is a complaint of sexual ha- fassment within the meaning of rule 3 of the All India Services (Prevention of Sexual Harassment) Regula- tions, 1998, 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 aS practicable, in accordance with the Procedure faid af 24, A similar proviso has been appended to Rule 14(2) of CCS CCA Rules which reads thus:-
"14.(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 ap- point 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 ha- rassment within the meaning of Rule 3-C of the Central Civil Services (Conduct) Rules,1964, the Complaints Committee established in each Ministry or Department the Complaints Committee shall hold, 'if Separate proce- dure has not been prescribed for the Complaints Com-29 | OA No. 860/2023
25. The proviso to 8(ii) of AIS Rules is in pari materia with the proviso to Rule 14(2) of CCS CCA Rules. This proviso to ccs CCA Rules had fallen for consideration before the Ker- ala High Court in the matter of Union of India & Others vere sus V.A. Jaitha in WP (C) No. 9695/2018 decided on 01° day of August, 2016. Kerala High Court after dealing with the provisions of PoSH Act recorded following observations:-
"15. It is settled law, in labour/service jurisprudence, that no authority can impose the punishment of dismissal un- less such authority is having power to appoint. However, the Disciplinary Authority need not be the Appointing Au- thority in all circumstances. Going by Rule 14(2) of the _ CCS (CCA) Rules, when a misconduct is noted and if the Disciplinary Authority finds that it is a matter which re-' quires to be enquired into, he can conduct the enquiry ei- ther by himseif or through another enquiring authority. By Virtue of the 'proviso' to Rule 14(2) of the CCS (CCA) Rules introduced in the year 2004, if it pertains to 'sexual harassment', it is to be enquired by the Committee consti- tuted specifically in this regard.
16. According to the learned Sr. Counsel for the peti- tioners, this is only the 'second stage' of the proceedings, i.e., if only the Disciplinary Authority finds as per Rule 14(2) of the CCS(CCA) Rules that it is a matter which re- quires to be enquired into. Here, there is a field of discre- tion to form an opinion, as to whether there is any sub- stance to be enquired into and it is in exercise of this dis- cretion that Annexure-A13 came to be issued, dropping the. proceedings, which is stated as quite in order. We find ~_ it difficult to agree with the said Proposition for the reasons noted below. | | | 30 OA No. 860/2023
17. The principles evolved by the Apex Court and the dj- rections given in Vishaka's case were reiterated and fur- ther directions were issued in the subsequent rulings ren- dered by the Apex Court including the verdicts in Medha Kotwal Lele vs. Union of India [(2013)1 Scc 297|Seema Lepcha vs. State of Sikkim ((2013)11 SCC 641] and Addi- tional District and Sessions Judge 'X' vs. Registrar Gener- ai, High Court of M.P. [(2015)4 SCC 91]. It can no more be a matter of dispute that, if at all any imputation of mis- conduct is made involving 'sexual harassment' as defined - in Vishaka's case and incorporated in Rule 3C of the CCS (Conduct) Rules, it can be enquired into only by the 'Com- plaints Committee' as Stipulated in the 'proviso' to Rule 14(2) of CCS(CCA) Rules, in so far as a Government ser- vant is concerned. As per Rule 14(2) of the said Rules, normally, if the Disciplinary Authority is of the Opinion that there are grounds for enquiring into the truth of imputation/misbehaviour, it may either enquire it himself or . appoint an inquiring authority under the said rule Or ap- point an authority under the provisions of Public Servants (inquiries) Act, 1850 in this regard: The formation of an 'opinion' as to the existence of a ground to enquire under So' introduced with effect from 10.07.2004 to Rule 14(2) of the CCS (CCA) Rules, an exception is drawn with regard toa misconduct/misbvehaviour/complaint involving 'sexual harassment', coming within the purview of Rule 3C of the CCS (Conduct)Rules. if such an instance is involved, the 'proviso' to Rule 14(2) of the CCS (CCA) Rules insists that, it shall be enquired into only by the 'Complaints Com- mittee' constituted in this regard. It is to be based on such report, that further action to be taken by the Disciplinary Authority and the punishment to be imposed, if the mis- conduct involving 'sexual harassment' is proved. In other: words, the right to enquire into a misconduct/misbehaviour involving 'sexual harassment has been taken away from the powers conferred upon the Disciplinary Authority. The formation of 'opinion' as to whether any ground existed, to enquire into the truth has relevance only in respect of mat- ters, which the Disciplinary Authority himself could enquire 31 OA_ No. 860/2023 into. When the power to enquire into is taken away from the Disciplinary Authority, conferring the same upon the 'Complaints Committee (in respect of sexual harassment). as per the 'proviso' introduced to Rule 14(2) of the CCS (CCA) Rules with effect from 10.07.2004 pursuant to Vishaka's case and amendment of the CCS (Conduct) Rules, introducing Rule 3C (in 1998), the power to form an . 'opinion' is also to be deemed as lost or stands transferred to the 'Complaints Committee'. To put it more clear, when an authority does not have the power to enquire into the correctness or otherwise of the complaint involving 'sexual harassment', such authority cannot form an 'opinion' and is virtually prevented from considering the contents of the Complaint as to whether any ground to enquire into such complaint does exist or not. If the version of the petitioners _ (that if only the Disciplinary Authority prima facie finds that the complaint involves an instance of 'sexual harassment', will it become essential to have it placed before the Com-
plaints Committee) is accepted, it may be possible to sub- vert the purpose of the Rule/enactment. If under a given circumstance, the post of Disciplinary Authority comes to be held by an unscrupulous person or if such Disciplinary Authority happens to be a person interested in the cause either by virtue of acquaintance with the delinquent em- ployee or by virtue of hostility to the victim, it may be pos- sible for the Disciplinary Authority to say that the Com- _plaint does not contain any act of 'sexual harassment', thus consciously preventing further course of action at the hands of the 'Complaints Committee'. This is not the inten- tion of the Apex Court/Law makers. An 'opinion' can be formed only by the competent authority, who is having the power to enquire, i.e., nobody else than the 'Complaints Committee'. This being the position, thé view taken by the Tribunal that the matter ought to have been placed for consideration before the Complaints Committee does not suffer from any error and is liable to be sustained,"
32 OA No. 860/202326, | Thus, these observations of Kerala High Court clear- ly indicate that powers of disciplinary authority are taken away and those are confirmed by the Interna| Complaint Committee. In the case of L.S Sibu, Officer vs By Advs. Shri N. Nandaku-
mara (supra), Kerala High Court made following observations:-
"7. Act 14 of 2013 was enacted to provide protec- tion against the sexyal harassment of women at work place and also for redressal of the complaint of sexual harassment. The preamble of the Act 14 of 2013 is as follows:
"An act to provide protection against sexual ha- rassment of women at workplace and for the pre- vention and redressa! of compiaints of sexual ha- | rassment and for matters connected therewith or incidental thereto," |
8. Therefore, the provisions in the Act has to be understood in the light of preamble as above. Section 4 Chapter 2 refers to the constitution of the Internal Committee, the composition of the members is by nomination by the employer. The Presiding Officer of the Committee shall be wom- én employed as senior level at the work place. Section 9 of Chapter 4 provides for procedure of raising complaint by aggrieved women. Any ag- grieved women in terms Of Section 9 is free to raise complaint in writing before the Committee. Section 11 provides for @ manner in which an en- quiry has to be conducted based on the com-
» Plaint. It is appropriate to refer the relevant portion of Section 11 of the Act 14 Of 2013 is as follows:
"11. Inquiry into complaint (1) Subject to the provisions of Section 10, the Internal Committee 33 OA No. 860/2023 or the Local Committee, as the case may be, Shall, where the respondent is an employee, pro- ceed to make inquiry into the complaint in accor- . dance with the provisions of the service rules ap- -- plicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Com- mittee shall, if prima facie case, exist, forward the complaint to the police, within a period of seven days for registering the case under Section 909 of the Penal Code, 1860, and any other relevant provisions of the said Code where applicable:"
9. This would show that if the respondent in the complaint is an employee, the enquiry of the com- plaint shall be made in accordance with the ser- vice rules applicable. Sub section 3 of Section 11 also gives the Committee the same powers vest- ed in a civil court under the Code of Civil Proce- dure, 1908 in respect of certain matters referred therein like summoning witnesses, discoveries etc. Section 13 in this case is relevant as far as to find the nature of the report prepared now. Sec- tion 13 provides as follows:
"13. Inquiry report. (1) On the completion of an in- _quiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall pro- vide a report of its findings to the employer, or as the. case may be, the: District Officer within a period often days from the date of com- pletion of the inquiry and such report be made available to the concerned parties.
(2) Where the Internal Committee or the Local Committee, as the case May be, arrives at the conclusion that the allegation against the respon-
dent has not been proved, it shall recommend to ~ 34 OA No. 860/2023 the employer and the District Officer that no ac- ton is required to be taken in the matter.
(3) Where the Interna! Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respon- dent has been proved, it shall recommend to the employer or the District Officer, as the case may be- |
(i) to take action for sexual harassment as a mis- _ conduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in Such manner as may be prescribed:
(ii) to deduct, notwithstanding anything in the ser-
vice rules applicable to the respondent, from the or cessation of employment it May direct to the respondent to pay such sum to the aggrieved woman:
Provided further that in case the respondent fails to pay the sum referred to in clause (ii), the internal Committee or, as the case may be, the Local Committee may forward the order for recov- ery of the sum as an arrear of land revenue to the concerned District Officer."
10. Section 13 read with Section 14 Clearly indi- Cates the enquiry to be concluded under Section 13 is not a preliminary enquiry contended by the respondents but it should be a full fledged enquiry 35 OA No. 860/2023 as to the finding of fact. This is so clear from Sec- tion 13(3)i). The enquiry that has to be conduct- ed by ICC in same manner to prove misconduct in_disciplinary proceedings as referrable in. Ser- _ vice Rules, if no Service Rules exist in such man- her, domestic enquiry is conducted."
(Emphasis supplied by us) 27: | These observations clearly show that the inquiry to be concluded under Section 13 of PoSH Act is not a prelimi- nary inquiry but it should be a full fledged inquiry as to the find- ing of fact. Section 13(1) of PoSH Act deals with Inquiry Re- port. It says that Internal Committee or the Local Cominittee, as the case may be, shall provide a report of its findings to the employer and such report be made available to the concerned -- parties. Section 13(3) of PoSH Act provides for the recommen- dation to be made by the ICC to the employer. From these ob- servations, there is no manner of doubt that the inquiry to be conducted by the internal Committee is a full fledged enquiry and not a preliminary enquiry. In the case of Medha Kotwal Lele and Others vs Union of India and Others (supra), it has been held that "Complaints Committee will be deemed to be an 36 : QA_ No. 860/2023 inquiring authority for the purposes of Central Civil Services (Conduct) Rules, 1964 and the report of the Complaints Com- | mittee shall be deemed to be an inquiry report under the CCS Rules. Thereafter the disciplinary authority will act on the report in accordance with the Rules". Mumbai Bench of this Tribunal in the matter of Shri Vilas V. Pawar versus Union of India and others in OA No. 770 of 2023 to which one of us (Justice M.G.Sewlikar) was a party has held that ICC is an Inquiring Au- thority under ihe POSH Act and it has to conduct full fledged in-
quiry and not preliminary inquiry.
28. | in the case of Aureliano Fernandes versus State of Goa and Others in Civil Appeal No. 2482 of 2014 (Supreme Court) dated 12 May, 2023, it has been held that the report of the Committee has to be a final report and not a preliminary report. After considering Rule 14 of the CCS (CCA) Rules in para 49, Supreme Court has held thus:-
"49. After Vishaka's case (supra), came the case of Medha Kotwal Lele and Others v. Union of India and Oth- ers6s ( supra) where a grievance was raised by several petitioners that the Complaints Committees directed to be constituted in terms of the Guidelines laid down by 37 OA _No. 860/2023 this Court, had not been established to deal with cases of sexual harassment. Treating the said petition as a Public. _ _ Interest Litigation, notices were issued to several parties Including the Union of India and the State Governments and the following -- directions: were issued:
"Devcon "Complaints Committee as envisaged by the Supreme Court in its judgment in Vishaka case SCC at -- para 53, will be deemed to be an inquiry authority for the Purposes of the Central Civil Services (Conduct) Rules, 1964 (hereinafter called the CCS Rules) and the report of _ the Complaints Committee shall be deemed to be an in-
_ quiry report under the CCS Rules. Thereafter the disci- plinary authority will act on the report in accordance with the Rules."" , . .
29. In para 55, Supreme Court held that the Internal Complaints Committee will be deemed to be an Inquiring Au- thority for the purpose of CCS CCA Rules. From these authori- tative pronouncements by Supreme Court and. Kerala .High Court it is more than clear that the ICC has to hold the full fledged inquiry and not a preliminary inquiry. What the ICC has done is in the nature of fact finding inquiry and not the inquiry as contemplated under Rule 8 of AIS Rules. This is clear from ; the reply of the respondent no. 2. In para no, 13, respondent -
no. 2 has made following averments:-
38 QA No. 860/2023"13. It is submitted that, after aforementioned suspen- sion order, the Government will take decision to initiate departmental proceedings against the present applicant and Enquiry Officer as well as Presenting Officer will be appointed in this case. Therefore, this Original Applicant has no merit and is liable to be dismissed with cost."
30. From this para, it is clear that the respondents are treating the report of the ICC as preliminary report. However, in our considered opinion, it is not a preliminary report, but a final report. This aspect will be dealt with at appropriate stage in this judgement.
31. | From the reply of the respondents and from the 'manner in which the ICC has conducted the proceedings, it ap- pears that there is some confusion as regards the procedure to he followed by the ICC. It appears from the respondents' aver- ments that charge has to be framed by the disciplinary authori- ty and a full fledged inquiry will be held once chargesheet is served on the delinquent. This is not a correct approach. Supreme Court has cleared this confusion in the matter of Au- reliano Fernandes (supra). In para 59, Supreme Court: held thus:-
39 OA No. 860/2023"Rule 14 prescribes the procedure required to be followed for conducting an inquiry by a Public Authority which entails is- suance of a charge sheet, furnishing details of the Articles of Charge, enclosing statements of imputations in respect of each article of charge, forwarding of a list of witnesses and the documents sought to be relied upon by the Management/employer. The said procedure may not have been strictly followed by the Committee in the present case, but it is not in dispute that all the complaints received from time to time and the depositions of the complainants were dis- closed to the appellant."
32. From these observations, there is no manner of doubt that it is the ICC who has to frame the charge and follow
- the procedure as required by Rule 14 of CCS CCA Rules and. in case at hand, Rule 8 of AIS Rules. It is not the job of the dis- . ciplinary authority to frame the charge after receipt of report of ICC by the disciplinary authority. Therefore, it is for the ICC to
- follow the procedure under Rule 14 of CCS CCA Rules / Rule 8 of AIS Rules.
33. The next question is whether the report of the ICC is a preliminary report or a final report. From the reading of the re- port, it is apparent that it is a final report. On reading the report | it is seen that the ICC had visited the spot of the incident. It had questioned the applicant on the spot of the incident. It had 40 (OA No. 860/2023 permitted the applicant to produce evidence and permitted the applicant to produce additional evidence. It also permitted the applicant to put up his version after the closure of the evidence and also made recommendations in terms of Section 13 of PoSH Act. Therefore, in our considered opinion, it is a final re- port. Learned counsel for the respondents submitted that the inquiry conducted by the ICC is a preliminary inquiry.. in para 13 of the reply also, the respondent no. 2 has contended that departmental proceedings will be initiated against the applicant and Inquiry Officer and Presenting Officer will be appointed. Though the respondent no. ; is treating the report of ICC as a preliminary report, on perusal of the inquiry report as a whole it appears that the ICC has conducted a final inquiry and it has made recommendations under Section 13(i) of the PoSH Act.
Therefore, in our view, it is a final report.
34. This takes us to another question whether ICC can de- prive the delinquent from cross-examining the witnesses. In ~ other words, can the !CC shield the witnesses from the cross-
examination of the delinquent.
Al OA No. 860/202335. ~ In the case of Dr. R.K. Pachauri (supra), it has been observed in para 17 and 21 thus:-
"17. It is submitted that cross-examination of witnesses by a person facing charge in an inquiry is not essential to principles of natural justice and natural justice cannot be cast into rigid module of universal application. It is settled law that a statutory body cannot travel beyond the statute and has to follow the procedure laid down in the Act. The concerned Act of 2013 does not provide for procedure to ~ _ be followed by ICC but leaves it to the rules framed under the Act. The relevant rules of 2013 framed by Ministry of Women and Child Development via Rule 7 state that ICC will carry out proceedings as per principles of natural jus- tice. Therefore, right to cross-examination of a witness by a respondent has not been provided by the statute.
KEK
21. From the reports of ICC and the documents available on record, it is apparently clear that the punishment inflict-
- ed are based on deposition and testimonies of witnesses examined in proceedings and the grounds raised in the appeal are not sufficient to set aside the findings of ICC. The report and proceedings of ICC further depict that ICC has followed all principles of natural justice and served as.
- a neutral body and conducted proceedings in a fair man- ner."
36. In the case of Hira Nath Mishra and Others (supra), Supreme Court has observed thus:-
" The girls who were molested that night would not have come forward to give evidence in any regular enquiry and if a strict enquiry like the one conducted in a court of law were to be imposed in such matters, the girls _ would have had to go under the constant fear of mo- lestation by the male students who were capable of 4200 QA _ No. 860/2023 such indecencies. Under the circumstances the course followed by the Principal was a wise one. Committee whose integrity could not be impeached collected and shifted the evidence given by the girls, Thereafter the students definitely. named by the girls were informed about the complaint against them and the charge. They - were given an opportunity to state their case. We do not think that the facts and circumstances of this case re- quire anything more to be done. °
37. Facts in the case of Hira Nath Mishra (supra) were totally different. In the case of Hira Nath Mishra (supra), facts were that the appellants were male students of a medical col- _ lege who were staying In college hostel had entered into the compound of the girls hostel and walked without clothes on them. 36 girls students residing in the girls hostel of the college . had made a confidential complaint to the Principal of the Col- lege. The Principal instituted an inquiry Committee consisting of three members of the staff. The Committee first called ten of © the girls' complainant and recorded their statements but not in presence of the appellants. The committee also obtained pho- tographs of the delinquent and mix them up with other photo- graphs of the Students. The girls by and large identified the delinquents from the photographs. The male students were called one after the other to appear before the Committee and 43. OA No. 860/2023 to each one of them, contents of the complaint were explained but names of the girls students were not disclosed to them. These students were expelled from the college. In these cir-
cumstance, the above observations were made.
38. So far as right of cross-examination is concerned, | Rule 7(4) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. (PoSH Rules) states that the Complaints Committee shall make in- ~ ..quiry into the complaint in accordance with the principles of natural justice. In the case of Dev Dutt vs Union of India & Oth- ers, 2008 8 SCC 725, Supreme Court observed that "the rules | of natural justice are not codified nor are they unvarying in all situation, rather are flexible. They may, however, be summa- rized in one word: fairness." In other words, what they require is fairness by the authorities concerned. Of course, what is fair would depend upon situation and context. Thus, When the ICC while dealing with the complaint under PoSH Act has to follow the principles of natural justice means their must be fairness on 44 OA_No. 860/2023 the part of the ICC. In the case of L.S. Sibu (supra), Kerala High Court in para 16 and 17 held thus:-
" 16. Lord Denning in B. Surinder Singh Kanda v. Govern- ment of the Federation of Malaya [1962 AC 322] observed as follows:
"If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him and then he must be given a fair opportunity to correct or contradict them."
17. The fundamental principies relating to the principles of natural justice is that when a prejudicial statements are made, the same shall not be used against any person without giving him an opportunity to correct and contradict. In sexual harassment complaint, sometimes the com- plainant may not have courage. to depose all that has hap- pened to her at the work place. There may be an atmos- phere restraining free expression of victim's grievance be- fore the Committee. The privacy and secrecy of such vic- tims' also required to be protected. It is to be noted that - verbal cross examination is not the sole criteria to contro- vert or contradict any statement given by the aggrieved be- fore any authority. Primarily, in a sexual harassment com- plaint, the committee has to verify and analyse the capabil- ity of the aggrieved to depose before them fearlessly with- out any intimidation. If the Committee is of the view that the aggrieved is a feeble and cannot withstand any cross examination, the Committee can adopt such other mea- sures to ensure that the witnesses statement is contradict- ed or corrected by the delinquent in other manner. The fair opportunity, therefore, has to be understood in the context of atmosphere of free expression of grievance. If the Com- mittee is of the view that the witness or complainant can freely depose without any fear, certainly, the delinquent can be permitted to have verbal cross examination of such 45 OA No. 860/2023 witnesses. In cases, where the Committee is of the view that the complainant is not in a position to express freely, the Committee can adopt such other method permitting the delinquent to contradict and correct either by providing statement to the delinquent and soliciting his objections to such statement."
39. _ From these observations, it is clear that when a prej- udicial statements are made, the same shall not be used against any person without giving him an opportunity to act and contradict. The ICC has to verify the capability of the aggrieved person to oppose before it fearlessly without any intimidation. If the ICC is of the opinion that the aggrieved woman will not be able to withstand the cross-examination, the ICC can adopt ~ such other measure to ensure that the witness statement is contradicted or corrected by the delinquent in other manner.
40. In the case at hand, ICC has not recorded any such observations as to why the identity of the two witnesses was withheld. It should have given the reasons for withholding the identity of those two witnesses. In the case at hand, it was all the more necessary because the applicant and the complainant ~ know each other being colleagues and on the next day of the 46 OA No. 860/2023 Incident, she (complainant) had visited the office of the appii-
cant.
44. | _ It was argued on behalf of the respondents that the procedure prescribed by the OM dated 4" November, 2022 was followed. In terms of this OM, chargesheet has to be is- sued to the Charged Officer after the receipt of investigation re- port. Accordingly, chargesheet will be subsequently issued. The OA is, therefore, premature. We do not find any substance in this argument. This contention has been repelled by the Kerala High Court in the case of L.S. Sibu (supra). In para 19, it is held that the Office Memorandum cannot supersede the statutory provisions. The statutory provisions are very clear in what manner this enquiry has to be conducted and concluded. Similar observations have been recorded by Calcutta High Court in the matter of Institute of Hotel Management, Cater- ing Technology and Applied Nutrition and Others (supra). | In para 40, 41 and 42, Calcutta High Court has held thus:-
" 40. It is trite that the intention of the legislature is pri- marily to be discovered from the language used, which means that attention should be paid to what has been 47 = OA_No. 860/2023 said and also to what has not been said. Here, the in- tention of the legislature, when examined in the light of guidance provided above by the Supreme Court, does not lead us to the conclusion that the scheme of the 2013 Act or the rules framed thereunder in any manner prohibits cross-examination of a complainant or her wit- nesses before the ICC by the respondent in his pres- ence. Cross-examination through a prepared question- naire may not in all cases serve the purpose of an ef- fective cross-examination. At times, the next question to be put to a witness could depend on the answer to the previous question. When the legislative intent be- hind enacting a particular provision is clear on a literal interpretation of the statute and the result is not absurd, it would be inadvisable fo substitute by judicial -wisdom of what the law should have been and how it should be applied.
41. We repeat, we have not been shown from the 2013 Act or the 2013 Rules that a respondent to a com- plaint of sexual harassment at the workplace, which is under inquiry, has no right to cross-examine a com- plainant. Cross-examination of the complainant by the respondent not having been excluded by express provi- sion or by necessary Implication, the right.of cross-ex- amination has to be read into the 2013 Act and the 2013 Rules. It is difficult to conceive that an inquiry held - by the ICC can pass the test of judicial scrutiny and be held to be valid without an opportunity of cross-exami- nation being extended to the respondent. Law relating to inquiries/trials against delinquent/accused in pro- ceedings, departmental or criminal invariably recog- nizes the right of cross-examination as a basic right of a fair hearing. Failure to extend opportunity of cross-ex- amination in course of an inquiry/trial could legitimately give rise to a grievance at the instance of the delin- quent/accused of being denied reasonable opportunity of defence, which is so very fundamental in relation to proceedings which have the potential of depriving such delinquent/accused of his valuable right under Article 21 of the Constitution.48 OA _No. 860/2023
42. The decision of a coordinate bench of this Court in Union of India v. Shibram Sarkar, reported in (2079)6. WBLR (Cal) 167, nullified the proceedings of inquiry under the 2013 Act for several reasons. One of the rea- sons was that the respondent had not been extended opportunity of cross-examination of the complainant as well as 3 (three) male railway servants who supported her version, holding that right of cross- examination is a basic right of a delinquent in departmental proceedings. The Court held that even though the Complaints Com- mittee may have been justified in protecting the victim, absolutely no justification was found in its approach of having the statements of the male witnesses recorded in the absence of the respondent. It could be so that the decisions of the Kerala High Court and the Dethi _ High Court had no occasion to deal with a situation of the nature in Shibram Sarkar (supra), where some of the witnesses were male and hence, there is no discus- sion therein with regard to -- the right _ of the respondent to cross- examine male witnesses in his presence." _--
42. From these observations of the Calcutta High Court, it is clear that there is no provision in the PoSH Act which takes away the right of cross-examination of the complainant. It has been further held that cross-examination_of the complainant by the delinquent not having been excluded by express provision or by necessary implication, the right of cross-examination has to be read into the PoSH Act and the POSH Rules. Calcutta High Court in the case of Suddasil Dey and Another (supra) in para 45 has made the following observations:-49 OA No. 860/2023
"45. Upon the constitution of a committee within the meaning of section 4 of the 2013 Act, a victim of sexual harassment may approach the same direct with a com- plaint. If the complaint is, prima facie, found to have sub- stance and worthy of being inquired into, the committee shall call upon the employee-respondent and explain to him what the allegations against him are. Copy of the complaint must be made available to him in course of the interaction. A written response to the complaint
- would always be desirable and, thus, the employees re- spondent ought to be invited to submit his response in - writing. If there is a denial of the allegations, the commit-
- tee must inquire into the complaint. In case the em- ployee-respondent understands what the allega- tions levelled against him are and does not insist, the requirement of issuing a formal charge sheet and handing over the same together with the lists of documents and witnesses could be dispensed with. However, if the employee respondent insists, sub-
-rules (3) and (4) of rule 14 of the CCS (CCA) Rules © need to be complied with. Should circumstances be such that conciliation can be brought about, section 10 of the 2013 Act permits the parties to proceed in that direction. Having regard to the proviso to sub-
-rule (2) of rule 14 of the CCS (CCA) Rules, the com- mittee has to function as the inquiring authority and question of the disciplinary authority itself inquiring into the complaint, as_is referred to in subrules (5) and (6) of rule 14, would not arise. Although the provi- so says that inquiry could be held by the committee if a separate procedure has not been prescribed for such purpose, such provision has to yield to the provisions of sub-section (1) of section 11 of the 2013 Act mandating the committee to make inquiry in terms of the service rules applicable to the employee respondent, should the same exist. The inquiry must thereafter, as of necessity, . proceed in consonance with the principles of natural jus- tice and also in terms of the other sub-rules of rule 14, to the extent practicable (emphasis supplied). It may not be necessary in all cases for an employer to appoint a Presenting Officer."
50 OA No. 860/2023(Emphasis supplied by.us)
43. | These observations make it amply clear that the ICC has to frame the charge, serve the charge sheet on the delin- quent and conduct the inquiry in accordance with Rule 14 of CCS CCA Rules / Rule 8 of the AIS Rules.
44. From these pronouncement of the Calcutta High Court, it is clear that in the absence of its express provision or by implication, the right of cross-examination has to be read in PoSH Act and PoSH Rules.
.45. Supreme Court in the case of Aureliano Fernandes (supra) has recognized the cross-examination of the witnesses under the PoSH Act. It has held in para 42 that in the context of -- service law, it is, mandatory to afford a government servant a reasonable opportunity of being heard before an order is passed. It has further held that in Mangilal v. State of M.P, 2004 2 SCC 447, the Supreme Court declared that even if a statute is silent and there are no positive words in the Act or 51 OA No. 860/2023 the Rules made thereunder, principles of natural justice must be observed.
46. After considering the case of Hira Nath Mishra & Others (supra),Supreme Court has further held in para 13 thus:-
"43. Rules of natura! justice cannot remain the same applying to all conditions. We know of statutes in India . like the Goonda Act which permit evidence being col- lected behind the back of the goonda and the goonda being merely asked to represent against the main charges arising out of the evidence collected. Care is taken to see that the witnesses who gave state- ments
- would not be identified. In such cases there is no question of the witnesses being called and the goonda being given an opportunity to cross- examine the wit- nesses. The reason is obvious. No witness will come . forward to give evidence in the presence of the the procedure may appear to a goonda. However un- savoury judicial mind, these are facts of life which are to be faced. The girls who were molested that night would not have come forward to give evidence in any regular enquiry and if a strict enquiry like the one con- ducted in a court of law were to be imposed in such ' matters, the girls would have had to go under the con- stant fear of molestation by the male students who were capable of such indecencies. Under the circum- stances the course followed by the Principal was wise one. The Committee whose integrity could not be im- peached collected and shifted the evidence given by _ the girls. Thereafter the students definitely named by the girls were informed about the complaint against them and the charge. They were given an opportunity to state their case. We do not think that the facts and 52 OA No. 8600/2023 circumstances of this case require anything more to be done."
47. These observations make it clear that the departure from the principles of natural justice can be only in exceptional circumstance as contemplated in proviso of Article 311(2) of the Constitution of the India and not otherwise. As per this pro- visio, the principles of natural justice are not required to be fol- lowed where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge or where the authority empowered to dis- miss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry or where the President or the Governor is satisifed that in the interest of security of the State, it is not expedient to hold such inquiry. In all other cases, principles of natural justice must be followed. It has also held that wherever rules are silent, principles of natu- ral justice must be read into them and a hearing be afforded to the person who is proposed to be punished with a major penal-
ty.
53 OA No. 860/202348. From these authoritative pronouncements, it is evi- dent that cross-examination is the right of the delinquent and it can be denied to him only in cases contemplated in the proviso of Article 311(2) of the Constitution of India. In the case of Bidyug Chakraborty & Ors. (supra), Supreme Court held thus:-
"After hearing the learned counsel for the parties we are of the opinion that the respondents are entitled to a hearing and to cross-examine the wit-- nesses produced by the University. We further direct that as this appears to be a case of sexual harassment the identity of the witnesses need not be revealed to the respondent or his counsel and for this purpose the respondent would be entitled to submit the questionnaire which will be put to the witnesses for their answers in writing. Mr. Rao states that the state- ments made by the witnesses without their names will be supplied to the respondents within two weeks from today. The said documents will also be supplied to Ms. Binu Tamta, the Advocate Commissioner who is being - appointed by this court for the purpose of getting an- swers to the questions to be supplied by the respon-
_ dents. Ms. Tamta will ensure the anonymity of the the witnesses. Mr. Rao, further states that the respon- dents would be entitled to produce their entire defence evidence in addition to the aforesaid questionnaire and the enquiry committee will also be handed over to. the respondent without revealing the identity of the wit- nesses." | AQ. From these observations, it.is clear that the delin-
quent is entitled to cross-examine the witnesses. Learned 54 "OA NO .860/2023 RHE COU / 2023 50, presence of the applicant. If the icc is of the opinion that she is.
not ina Position to depose in the presence of the complainant it May adopt the procedure AS prescribed by Keralg High Court in the case of L.s. Sibu (supra).
54. Learned counsel for the res pondent no. 2 vehement-
ly submitted that the | cros negative. She submitted that the applicant should have assert- ed his right of cross- "examination at that time. We do not find any substance in this submission,
92. The ICC did not ask him whether the applicant wanted to Cross examine the Witnesses. It only put a question whether applicant wanted any additional evdience or information.
93. Thé ICC did not Offer the Opportunity to the applicant to cross-examine the witnesses. If the ICC had offered the oppor- | tunity of cross- -€xamination to the applicant and if the applicant had not availed that opportunity, the Ice would have made a record that the applicant declined to cross-examine the' wit- nesses. In the absence of any such record, 'it has to be held that the ICC did not give him an Opportunity to cross-examine the witnesses, Therefore, the principles Of natural justice are the casualty. Moreover, no reasons are recorded for not afford.
ing Opportunity to cross examine the witnesses, 56 OA _No.860/2023
4. Learned counsel for respondent No.2 submitted that it is the final report of the preliminary enquiry. The applicant was allowed to Participate in the inquiry at all Stages, he was heard after the closure of the evidence, the applicant was questioned on the CCTV footage and recommendations have also been made by the ICC. Therefore, it is a final report.
55. The next question that arises is whether second proviso to Section 11 of the PoSH Act has been followed. Second pro-
viso to Section 11 of the POSH Act reads thus:-
- "Provided further that where both the parties are employ-
ees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a Copy of the findings shall be made available to both the Parties en- abling them to make representation against the findings before the Committee."
86. Thus, this proviso contemplates that when both the com- plainant and the delinquent are the employees, the ICC shail make available copy of finding to both the complainant and the delinquent and they shall be given an opportunity of being heard against the finding and they shall be given a copy of the finding to enable them to make representation against the find-
57 OA No. 860/2023ing before the ICC. The report of the ICC as indicated earlier is the final report. Once the report is held to be final report, the ICC becomes functus Officio. Therefore, the applicant could not have made representation against the findings of the ICC. The second proviso contemplates that the copy of the report be made available to the complainant and delinquent during the course of the inquiry. On submissions of final report, the inquiry .
- come to an end so far as ICC is concerned and, therefore, there was no question of the applicant making the representa- tion against the said findings. On perusal of the report of the ICC, it does not appear that the complainant and the delinquent were communicated the findings of the ICC and they. were called upon to make representation on those findings. There- fore, the ICC has violated the provisions contained in second proviso to Section 11 of the PoSH Act. This proviso mandates that once the report of the committee is ready, it shall forward it to the complainant and the. delinquent and the complainant and the delinquent are at liberty to make representation before the ICC and this shall be done during the course of the inquiry.
58 OA No .860/2023This procedure has not been followed. The final report was for- warded by the ICC to the Disciplinary Authority. Therefore, once the report is final and recommendation as per Section 13 of PoSH Act is made the question of the applicant making rep-
resentation does not arise.
57. In these circumstances, the report of the ICC cannot be sustained. It needs to be set aside. We, therefore, allow the OA. The report of the ICC dated 25" September, 2023 is set aside.
f
(i) The ICC shail hold denovo inquiry.
(ii) The ICC shall follow the procedure contemplated in Rule & of the AIS Rules.
(ili) ICC shall frame the charge against the applicant if the ap-
plicant insists for the same and serve the charge memorandum on him.
(iv) . ICC shall examine the witnesses and afford opportunity to the applicant to cross-examine the witnesses.
59 OA No. 860/2023(v) | The deposition of the witnesses which have already been recorded in the presence of the applicant need not be recorded again and the applicant, if he wants to cross-examine, shall cross-examine the witnesses from that stage.
(vi) If identity of any witness is to be withheld, ICC shall do so only after recording reasons.
(vii) If the ICC decides to deny the principles of natural justice to the applicant, it shall do so only after recording reasons.
(vill) If the applicant examines any defense witness, if the Pre- senting Officer is not appointed, the ICC shall afford opportuni-
ty to the complainant to cross-examine the witnesses.
(ix) ICC shall complete the inquiry within @ period of six months from the date of receipt of a certified copy of this order.
98. Pending MAs, if any, stand closed. No costs. .
-- (Shri Krishfia)_--> (Justice M.G.Sewlikar) Member(A) | Member (J) "Ak. | a at d AO 3) Bp