Central Administrative Tribunal - Delhi
Shri Sanjeev Kumar vs All India Institute Of Medical Sciences on 4 October, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI Original Application No.2351/2011 New Delhi, this the 4th day of October, 2012 CORAM: HONBLE DR. VEENA CHHOTRAY, MEMBER (A) HONBLE DR. DHARAM PAUL SHARMA, MEMBER (J) Shri Sanjeev Kumar, S/o Shri Sewa Singh, R/o H.No.101, Khirki Village, P.O. Malviya Nagar, New Delhi Applicant (By Advocate: Ms Raman Oberoi) Versus 1. All India Institute of Medical Sciences, Through its Director, Ansari Nagar, New Delhi 110 029 2. Ministry of Health, UOI, Through its Chief Secy. Nirman Bhawan, New Delhi Respondents (By Advocate:Shri Sahil S Chauhan for Shri Mehmood Parcha) O R D E R
By Dr. Veena Chhotray:
Through this OA, an ex-Laboratory Technician of AIIMS has challenged the penalty of dismissal. The imposition of the penalty has been on the charge of outraging the modesty of a woman patient in the ECG Room of AIIMS. The instant OA was amended subsequently vide the MA 3199/2011. Besides, the MA No.312/2012 bringing on record certain material documents obtained under the RTI was also allowed on consensual basis.
By way of relief, the OA has sought quashing the impugned orders: (i) the suspension order dated 10.2.2007; (ii) dismissal order dated 22.11.2010; and (iii) the appellate authoritys order dated 19.5.2011. Besides directions for reinstatement with back wages along with interest as per Hardwari Lals Judgment, and award of compensation along with the costs of the proceedings have also been sought.
Ms. Raman Oberoi and Shri Sahil S Chauhan for Shri Mehmood Parcha would represent respectively the case of the applicant and the respondents.
2. The applicant was proceeded against departmentally in a major penalty proceeding under the CCS (CCA) Rule 14 vide the Charge Memorandum dated 29.8.2008 (Annex. A/6) for the following Article of Charge:-
ARTICLE OF CHARGE That Shri Sanjeev Kumar while working as Laboratory Technician is responsible for molestation of Ms Binapani Sharma on 19.01.2007 at around 9.30 a.m. in E.C.G. Room, No.32, 2nd Floor, OPD Block, AIIMS, New Delhi. He had made physical contact and advances with Ms Binapani Sharma on the pretext of doing ECG testing; he pressed her breast and tried to touch her sensitive part. This act of Shri Sanjeev Kumar with Ms Binapani Sharma is unbecoming of an Institute employee and amounts to a serious misconduct.
Shri Sanjeev Kumar, is, thus responsible for gross misconduct, misbehaviour, failed to maintain amenability to discipline and has acted in a manner unbecoming of an Institute employee; thereby contravening Rule 3 (1) (iii) of this CCS (Conduct) Rules, 1964 as applicable to the employees of the Institute. The Statement of Imputation of Misconduct ran as here under:
IMPUTATION OF ARTICLE OF CHARGE It has been reported by Shri R.S. Rawat, Security Officer vide his report dated 22.1.2007 that on 19.1.2007 at about 1.30 p.m. a girl namely Ms Binapani Sharma D/o Sh. Jagdish Sharma R/o B-8, Housing Society, South Extension Part-I, New Delhi came to Police Post, AIIMS and lodged a complaint with the police that she was molested by Shri Sanjeev Kumar, Laboratory Technician in Room No.32, 2nd Floor, Main OPD, AIIMS during her E.C.G. examination. On her complaint Shri Sanjeev Kumar was arrested by the Police vide FIR No.47/07, P.S. Defence Colony u/s 354 IPC. Ms. Binapani Sharma has also submitted a written complaint dated 25.1.2007 against Shri Sanjeev Kumar by providing a copy of complaint lodged by her with Delhi Police on 19.1.2007 by providing a copy of complaint lodged by her with OPD Block, AIIMS, New Delhi for ECG testing and meantime Shri Sanjeev Kumar s/o Shri Sewa Singh of R/o 101, Khirki, Malviya Nagar, Delhi who was present in the room molest her and asked her about his boy friend, about sexual relation with her boyfriend, pressed her breast and try to touch her sensitive part in the morning around 9.30. Shri Sanjeev Kumar was not on duty for ECG work of the patients, however, he went in Room No.32, Main OPD, 2nd floor unauthorizedly with bad intention and on the pretext of ECG testing he molested Ms. Binapani Sharma. The OPD Card Regn. No.3033/07 dated 19.1.2007 of Ms. Binapani Sharma shows that she is under treatment at Medical Department of the AIIMS and she has been advised ECG test on 19.1.2007. Such act of Shri Sanjeev Sharma is unbecoming of an Institute employee and amounts to a serious misconduct on his part and he was not expected to behave as an Institute employee in such a manner.
Shri Sanjeev Kumar, is, thus responsible for gross misconduct, misbehaviour, failed to maintain amenability to discipline and has acted in a manner unbecoming of an Institute employee; thereby contravening Rule 3 (1) (iii) of this CCS (Conduct) Rules, 1964 as applicable to the employees of the Institute. The penalty of dismissal has been imposed after a regular DE in which the Charged Officer (CO) participated. The appeal against the order of the Disciplinary Authority (DA) has been rejected by the Appellate Authority (AA).
3. Brief facts and broad sequence of events in the DE:
3.1 As would be clear from the extracts in the preceding para, the charge in question had pertained to an incident alleged to have occurred on 19.1.2007. An allegation of molestation by the applicant was made by one OPD patient, Mrs. Binapani Sharma as she had gone to the specified ECG Room for ECG Test. This was followed by a complaint dated 19.10.2007 to the Delhi Police (Annex A/1). Based on this complaint, an FIR (No.42/07) was registered by SI Shri Iqbal Singh. On 22.1.2007, Shri R.S. Rawat, the Security Officer of AIIMS vide his communication dated 22.1.2007 reported the matter to the Dy. Chief Security Officer of AIIMS. On 25.1.2007 the said Mrs. Sharma complained to the Dy. Director (Admn) and CVO, AIIMS (Annex A/2). Enclosing a copy of her complaint dated 19.1.2007 to the Police, a request was made for taking administrative action against the said Lab. Technician. With this letter she had also enclosed her OPD Card.
3.2 After hearing the alleged accused as well as two friends of the complainant (she herself did not participate, being in Manipur), the concerned ECG Technician, Ved Pal besides the S.I. Shri Iqbal as well as the documentary evidence submitted before it, the Committee arrived at the following conclusive findings (Annex. A/4):
Generally, it is believed that a woman does not allege to anyone regarding molestation, unless incidence has occurred. In such cases, the complainant also does not appear for hearing due to social stigma. Ms. Binapani Sharma vide her letter dated 11th Sep. 2007 has also confirmed her non appearance due to reason that she being an unmarried girl and did not like to recall such an crime any more. Shri Sanjeev Kumar (accused) could not prove himself as innocent. During the course of enquiry his attitude/behaviour was uncooperative and arrogant. On the basis of oral evidences and documentary evidences, it can be stated that Shri Sanjeev Kumar is guilty of the charge. While making some general recommendations to prevent recurrence of such incidents in future, the Committee recommended initiation of disciplinary proceedings against the applicant. Besides, the Committee also recommended strict action against Shri Ved Pal, the E.C.G. Technician. The report was dated 23.5.2008 (Annex A/4).
3.3 The Charge Sheet was issued against the applicant vide the Memo dated 29.08.2008 (Annex A/6). In the List of Witnesses besides the complainant, Shri R.S. Rawat, Security Officer, AIIMS and Shri Iqbal, Sub Inspector, Delhi Police, AIIMS Police Chowki were included. As documentary evidence, the report dated 22.01.2007 of Shri R.S. Rawat, Security Officer, complaint dated 25.01.2007 of Ms Binapani Sharma and FIR No.47/07, P.S. Defence Colony u/s 354 IPC were listed.
3.4 The regular DE was conducted in the matter. The Inquiry Officer was a retired Deputy Secretary/CDI from CVC. The CO participated and was assisted by his Defence Assistant. He also submitted a written defence brief. Though producing a defence document which was taken on record, he did not ask for any defence witness.
On behalf of the prosecution, there were two prosecution witnesses who appeared and deposed before the Inquiry Officer. The complainant herself did not appear. She also did not intimate any reason for her absence. The PO stated that Ms Binapani Sharma is unlikely to turn up for the inquiry as she also did not appear in the Court till date despite bailable warrant issued by the Court to her as had been deposed by SW-2. At the request of the PO, she was dropped as a Prosecution Witness. After taking into account the documentary evidence and the oral depositions as well as the written briefs by the PO and the CO, the following conclusive findings were arrived at by the Inquiry Officer:-
From the above evidence it is established that on 19.1.2007 the complainant visited the AIIMS and she was advised ECG test (part of Ex.S.2). It is also established that ECG test was also done on the complainant Ms. Binapani Sharma on 19.1.2007 [Ex.D.1]. However, no evidence has been put forth or adduced during inquiry, which may indicate that the said ECG test on the complainant was done by Shri Sanjeev Kumar, Lab. Technician, as alleged in the complaint/chargesheet. But, SW-2 has deposed that in the court case chargesheet has been filed by the Police, which has been admitted by the Court, and the matter is sub judice. As no independent investigation was done by the AIIMS in this case, and no clear cut evidence has been put forth by the prosecution to support the charge against the CO, it cannot be conclusively said that the ECTG on the complainant was done by Sh. Sanjeev Kumar instead of Sh. Ved Pal and that the CO indulged in acts of misconduct as alleged in the charge. The charge is therefore held as not proved against the CO for lack of proper evidence. Thus, as per the IO, for want of proper evidence the charge was held as not proved. The IOs report was submitted on 11.7.2009.
3.4 In the meanwhile, the criminal case against the applicant was decided by the Metropolitan Magistrate, Mahila Court by the order dated 21.8.2011 (Annex A/11). The accused was acquitted recording the following conclusive observations:-
6. Prosecution has failed to examine the complainant or any other public witness despite repeated opportunities. Only three police witness has been examined by the prosecution. Nothing incriminating has come out against the accused. Prosecution has failed to produce anything incriminating on record to link the accused with the alleged offence or to prove the guilt of the accused beyond reasonable doubt. Accordingly the accused Sanjeev Kumar is acquitted for the offence under Section 354 IPC. Bail bond cancelled. Surety discharged. File be consigned to record room. 3.5 As regards the disciplinary proceedings, the DA did not agree with the findings of the IO and issued a Disagreement Note dated 23.8.2010 (Annex. A/12). Para 3 of the Order stated as follows:
3. After having gone through the report of the Inquiry Officer, the Director & Disciplinary Authority is of the tentative opinion that the findings of the Inquiry Officer are not tenable as a woman does not allege to anyone regarding molestation, unless incidence has occurred. In such cases most of the time, the complainant does not appear for hearing due to social stigma. The matter has initially been enquired into by the Committee for dealing with Complaints regarding Sexual Harassment of Women at AIIMS and Ms. Binapani Sharma vide her letter dated 11.9.2007 confirmed her con appearance due to reason that she being an unmarried girl and did not like to recall such an crime any more. A FIR has also been lodged in the matter and Shri Iqpal Singh, Sub-Inspector, Delhi Police vide his statement dated 9.4.2008 confirmed the incidence. The Committee vide their report dated 23.5.2008 (copy enclosed) also held that Shri Sanjeev Kumar guilty of charge. Along with the Disagreement Note, copies of the Inquiry Report in the DE as also the Report of the Sexual Harassment Committee were enclosed.
After considering the written representation dated 6.9.2010 by the CO (Annex. A/13), the Director, AIIMS as the Disciplinary Authority passed the order dated 22.11.2010 imposing the penalty of dismissal from service which shall ordinarily be a disqualification for future employment under the Government.
Against this order, the CO submitted an appeal dated 3.12.2010 (Annex A/15). The same, however, got rejected by the President, AIIMS, the Appellate Authority, vide the order dated 9.5.2011 (Annex A/16).
4. The salient pleas raised in support of the OA through the written as well as the oral submissions are summed up below:
4.1 As the complaint itself had been subsequently withdrawn by the complainant, it became non-existent. The fact of a non-existent complaint coupled with non-appearance of the complainant either before the Sexual Harassment Committee or at the time of the criminal trial or in the departmental enquiry rendered the DE as well as the penalty imposed in pursuance thereof as null and void ab nitio.
4.2 The recommendations of the Sexual Harassment Committee for initiation of the disciplinary proceeding against the applicant was not in consonance with law. This contention has been raised on multiple grounds: (i) The present case does not come within the purview of the Apex Court Judgment in Vishaka & Ors Vs State of Rajasthan {1997 SC (Cri) 932}. The said judgment as well as the subsequent guidelines issued by the DoP&T pertained to preventing sexual harassment of women at their work place. As the complainant was not an employee of AIIMS, her complaint dated 25.1.2007 made to AIIMS was not maintainable. (ii) The recommendation of the said Committee was in violation of the DoP&T guidelines on the subject. These inter alia, prescribe the Complaints Committee in such cases to be deemed to be the Inquiring Authority. (iii) The Complaints Committee was not competent to recommend disciplinary action against the applicant in view of the withdrawal of the complaint and the non-appearance of the complaint before the Committee to establish her case. (iv) It would be alleged that the depositions of the friends of the complainant had suffered from several inconsistencies qua the original complaint. Besides, one of them had also mentioned about the complainant asking them to compromise the case after payment of money. (v) The SHC had held the applicant as guilty without allowing him to cross examine the friends of the complainant. Besides, the evidence of Shri Ved Pal, of material relevance, had been ignored.
4.3 Non-participation of the complainant / and other material witnesses in the DE would be averred to have vitiated the enquiry itself. The Apex Courts decision in Hardwari Lal Vs State of U.P. & Ors {(1999) 8 SCC 582} (Annex A/17) would be cited. Besides the decision of a Division Bench of the Madras High Court in C.S. Usha Vs Madras Refineries Ltd., Chennai {(2001) 2 CLR 136} would also be referred.
4.4 It would be contended that whereas the Inquiry Officer (the applicants learned counsel Ms Oberoi would be at pains to highlight that he was an expert in the matter) had held the charge as Not Proved; the Disciplinary Authority had held the IOs findings as not tenable without giving sufficient reasons for such disagreement with the specific findings of the IO. Ms Raman Oberoi, the learned counsel for the applicant would submit that the well reasoned findings of the IO had been disagreed by the DA for flimsy reasons.
4.5 The orders of the Disciplinary Authority and the Appellate Authority would be faulted on the ground of being non-speaking and the same having not considered relevant submissions by the charged official.
4.6 Exoneration of the co-accused Ved Pal, the ECG Technician vide the Tribunals order dated 22.12.2011 in the OA 2058/2011 would be heavily relied upon. It would be the submission of the learned counsel for the applicant that since the said Ved Pal had deposed about having conducted the ECG himself, the inevitable conclusion would be that the present applicant could not have conducted the ECG as alleged. Thus, the very foundation of the charge itself would be contended to have slipped away. Several other similarities in the two cases such as: the IO being the same; the non-appearance of the complainant in both the cases would also be highlighted.
4.7 The acquittal of the charged official in the criminal case would also be raised as a ground to plead the un-sustainability of the impugned penalty orders.
5. The respondents have contested the claims in the OA and justified the impugned action. It is submitted on behalf of the respondents that the conduct of the disciplinary proceeding as well as imposition of the penalty has been after due observance of the relevant rules and procedures and giving adequate opportunity for defence of the delinquent. Further it is averred that the OA itself suffers from suppression of facts and thereby misleading the Tribunal. The gravity of the charge and proportionality of the penalty have also been emphasized.
6. The scope of judicial review in departmental proceedings has been considered by the Honble Apex Court and the High Courts in a catena of judgments. Certain basic principles have emerged defining such scope. We find it appropriate to sum up the broad principles in this regard:
The power of punishment to an employee is within the discretion of the employers and ordinarily Courts do not interfere. The exceptions stipulated are where the enquiry proceeding or the punishment get vitiated because of non-observance of relevant rules or principles of natural justice or denial of reasonable opportunity to defend etc. or the punishment is found to be disproportionate to the proved misconduct (M.P. State Agro Industries Development Corporation Ltd vs Jahan Khan {(2008) 1 SCC (L&S) 9-10}.
While exercising jurisdiction under Articles 226 and 227 of the Constitution, Court cannot act as an appellate authority and substitute their findings for those of administrative authorities (Akhilesh Kumar Singh vs State of Jharkhand & Ors {(2008) 1 SCC 383}.
Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. The power of judicial review is meant to ensure that the individual receives fair treatment and not that a particular decision is taken {B.C. Chaturvedi vs Union of India & Ors AIR (1996) SC 484}.
The emphasis has been on substantive justice. While dealing with the impact of non-observance of the prescribed provisions, the Apex Court has distinguished the substantive from the procedural provisions. The theory of substantial compliance has been propounded in the former and the test of prejudice in the latter {State Bank of Patiala vs. S Sharma {(1996) 3 SCC 364}.
While reiterating the proposition of law that observance of principles of natural justice is a sine qua non in disciplinary proceedings, the Apex Court clarified that rules of natural justice cannot be straight jacketed. Speaking for the apex court, Honble Justice Thakker had emphasized the change of trend from the earlier position in English Law i.e. from instead of non-observance of natural justice rendering a decision void to whether the same had caused prejudice to the applicant {Haryana Financial Corporation & Anr vs Kailash Chandra Ahuja {(2008) 2 SCC (L&S) 789}.
Distinguishing departmental enquiry from criminal proceedings, the Honble Apex Court elaborated that whereas crime is an act of commission in violation of law or omission of public duty; departmental enquiry is to maintain discipline in service and efficiency of public service (Noida Entrepreneurs Association vs Noida & Ors {(2007) 10 SCC 385}.
The settled legal proposition is that the standard of proof in a disciplinary proceeding is different from that in a criminal proceeding. While in the former it is preponderance of probability; in the latter it is proof beyond reasonable doubt. Further, complicated principles and procedures laid down in the Civil Procedure Code and the Evidence Act do not apply in departmental enquiries (U.P. State Road Transport Corporation vs Suresh Chand Sharma {(2010) 2 SCC (L&S) 239}.
While dealing with the standard of proof in a disciplinary proceeding, it was observed by the Honble Apex Court: The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair common sense way as men of understanding and worldly wisdom will accept {North West Karnataka Road Transport Corporation vs H.H. Pujar (2009) SCC (L&S) 251 State of Haryana vs Rattan Singh (1997) SCC (L&S) 298}.
Dealing with the impact of acquittal in a criminal case of penalty in disciplinary proceedings, the view taken was that where enquiry is independent of criminal proceedings, acquittal in a criminal court is of no help since the standard of proof in the two are different {Divisional Controller, Karnataka State Road Transport Corporation vs M.G. Vittal Rao (2012) 1 SCC (L&S) 171}.
6. We would be dealing with the issues raised in the present OA in the light of these broad parameters.
6.1 The sustainability of the impugned departmental proceeding and the penalty has been challenged on the ground of the recommendations of the Sexual Harassment Committee. However, the present case is not one of an action being taken under the proviso to the CCS (CCA) Rule 14, sub-rule (2); nor is it strictly covered by the Apex Courts judgment in Vishakas case (supra). As the complainant, a woman OPD patient of AIIMS, had forwarded a copy of her complaint to the Police to the Dy. Director (Admn) & the CVO, AIIMS, the matter was referred by the Vigilance Cell to the Committee dealing with complaint of sexual harassment of women at work place at AIIMS (an existing institutional mechanism in the respondent-Institute to handle such complaints). The report of the Committee reveals that it was preliminary in nature and before making its recommendations, had heard the applicant in person. The disciplinary proceeding initiated subsequently had not referred to the Committees report. Thus, the various pleas raised in this context are not found to be relevant.
6.2 Much has been made of the subsequent withdrawal of the complaint by the complainant and her non-appearance in any enquiry either in AIIMS or in the trial court. The impact of these two facts in conjunction is contended to have rendered the DE as well as the penalty null and void ab initio. However, the peculiar nature of the allegations involving outraging the modesty of a woman that carry a social stigma to the victim and the circumstances under which the complaint was withdrawn have been tended to be brushed aside. As revealed from the records, after the alleged incident the applicant had gone away to Manipur. Further in response to a letter from the Director (Admn) & CVO, AIIMS, she had replied by a letter dated 11.9.2007, stating the reasons for her decision to give a quietus to the issue. A copy of this letter has been enclosed along with the MA 312/2012 filed by the applicant along with certain other documents obtained under the RTI. The text of the letter is extracted below in toto:
To The Director (Admn) and Chief Vigilance Officer AIIMS Dear Sir, In response of your letter dated 22.8.07 regarding my complaint about a case, I have the honour to state that as I am unmarried girl dont like to recall such a crime anymore.
As such I request you to please allow me to withdraw that case immediately. Let me take a reply in Delhi. I mean please dont reply again in Manipur.
Yours B. Binapani Sharma.
Date:11-9-07 6.3 A related argument has been advanced that failure on the part of the applicant to examine the complainant or the other material witness would tantamount to vitiation of enquiry as being in violation of the principles of natural justice. In support, the apex courts decision in Hardwari Lals case (supra) would be cited. Besides the decision of the Division Bench of the Madras High Court in C.S. Ushas case (supra) has also been adverted to. However, both these cases were factually distinguishable.
In Hardwari Lals case, the appellant, a Police Constable had been charged for having abused his colleague, under the influence of liquor. However, neither the complainant nor the other employee who had accompanied the appellant to the Hospital for medical examination had been examined as witness. In this case the Apex Court had taken the view that the impact of complainants testimony would not be visualized and also evidence of the employee who had accompanied the appellant to the hospital, would have a bearing upon the appellants state of inebriation, if any. The enquiry was held to have been vitiated under these circumstances being in violation of natural justice.
Similarly in C.S. Ushas case, the facts were entirely different. The appellant-complainant had been working as an Officer under the first respondent-PSU. She had alleged sexual harassment by the second respondent. On this ground denial of service benefits to her such as promotion, salary, leave and medical benefits had also been alleged. Besides, initiation of a disciplinary proceeding against her was also alleged on account of the same reason. All these alleged harassment had spanned a period of 1992 to 1996. A Complaint Committee had been constituted by the PSU Authorities to look into the allegations set out in her Lawyers Notice. The Committee had also sent a Notice to the complainant asking her to appear before it.
On filing a Writ Petition before the Madras High Court praying for quashing the charge sheet besides seeking directions for grant of the service benefits, a Single Bench of the Honble High Court had not found the claims regarding denial of service benefits as borne out by facts. The prayer for not proceeding in the charge sheet till the decision in the allegations of sexual harassment or even quashing the charge sheet had not been accepted. The appeal against the Single Bench judgment had also been dismissed by the Division Bench of the Madras High Court.
It was in this context that the Honble Apex Court had observed that when in view of complaints of sexual harassment made by a female employee, the employer constitutes a Complaint Committee to enquire into the allegations, the complainant cannot be permitted to seek any relief or directions in her favour without participating in the enquiry and substantiating her allegations.
Propounding the doctrine of circumstantial flexibility, the Honble Apex Court in its judgment in Collector of Central Excise, Calcutta vs Alnoori Tobacco Products & Anr {2004 (6) SCC 186, had frowned upon disposal of a case by placing blind reliance on a decision. The following observations by the Honble Apex Court are extracted as hereunder:
12. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision in which reliance is placed. Observations of Courts are neither to be read as Euclids Theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Thus, considering the different factual gamut of both the judgments cited on behalf of the applicant, a general proposition of law as to non-appearance of complainant in an enquiry vitiating the same cannot be argued.
6.4 The Disciplinary Authority in this case had disagreed with the findings of the Inquiry Officer. The relevant order in this regard containing the tentative views of the DA had been communicated to the CO vide the Order dated 23.8.2010. In course of her arguments, Ms Raman Oberoi, the learned counsel for the applicant would emphasize that the Inquiry Officer had held the charged as not proved on the basis of certain clear propositions of law. It would also be the case of the learned counsel that while disagreeing with the findings of the IO, the DA had not given due consideration to those propositions.
However, these submissions again, are not found to be tenable even on a cursory perusal of the enquiry report and the disagreement order. We have in Para 3.4 above extracted the conclusive findings of the IO. It has also been noted by us earlier that the IO had held the charge as not proved for lack of proper evidence. The propositions of law referred to by the learned counsel for the applicant and incorporated in the latter part of Para 4.2 of the enquiry report are in fact a part of the submissions by the Charged Official himself in his written brief. The only prerequisites to ensure the validity of Disagreement by the DA are: (i) It should be tentative in character, (ii) clear reasons for the same should be given; and (iii) the CO should be given a reasonable opportunity for defence. On all these counts the disagreement order comes true. Hence we do not find any infirmity on this account.
6.5 We have also perused carefully the order by the Coordinate Bench of this Tribunal in the OA No.2058/2011 (Ved Pal vs AIIMS) decided on 22.12.2011. A separate charge sheet had been issued against the said Ved Pal in the context of the same alleged incident. The allegations in this case were that Shri Ved Pal while working as Laboratory Technician is responsible for dereliction/negligence of duty as he allowed Shri Sanjeev Kumar, Laboratory Technician unauthorizedly for ECG testing of Ms. Binapani Sharma on 19.01.2007 in E.C.G. Room No.32, 2nd Floor, OPD Block, AIIMS, New Delhi in his place. Shri Sanjeev Kumar took advantage of this situation and molested Ms Binapani Sharma. This act of Shri Ved Pal is unbecoming of an Institute employee, amounts to a serious misconduct and he failed to maintain devotion to duty.
The defence of the applicant in that case throughout had been that he had not allowed anybody to conduct the ECG and he had conducted the same himself.
While the applicants learned counsel has argued attaching great importance to this stand of Ved Pal, who in fact was the concerned ECG Technician. However, the point to note is that the charges in the two cases though pertaining to the same incident were different. Whereas the allegation of molestation of the complainant was against Sanjeev Kumar; the charge against Ved Pal in this case was of having unauthorisedly allowed Sanjeev Kumar for ECG testing and thereby being responsible for negligence and dereliction of duty. This critical distinguishing factor between the two situations had been noted by the Ld. Coordinate Bench of this Tribunal. As is relevant from the following extracted observations from Para 11 of the Order: One could understand, if the charge against him was that he had molested the patient, then of course it would have been a serious misconduct but that it is not the charge against him. Carrying the same tenor of argument further, it would be appropriate for us to highlight that as per the Article of Charge against the applicant in the instant OA or the Statement of Imputation, it was not the charge by the respondents that Sanjeev Kumar had in fact done the ECG testing. This is clearly borne out from the Article of Charge and the Statement of Imputation of Misconduct extracted by us in Para 3 above. The Article of Charge had mentioned the service identity of the CO as working as a Laboratory Technician. It had also mentioned about the allegation of molestation on the pretext of doing ECG test and in the ECG Room No.32, 2nd Floor, OPD Block, AIIMS, New Delhi. Likewise the Imputation of Misconduct merely mentioned that Shri Sanjeev Kumar who was present in the room had also explicitly stated that Shri Sanjeev Kumar was not on duty for ECG work of the patients and had gone to the said room unauthorizedly.
Hence the stand of Shri Ved Pal of having done the ECG test himself would not really take away the foundation of the charge itself, as would be tended to be argued by the applicants learned counsel before us. The other similarities pointed out in the two cases also would not be touching the core issue since the facts of the two cases were distinguishable in critical aspects.
6.6 The applicant has also derived strength from his acquittal in the criminal case. However, considering the settled legal propositions about the standard of proof being different in a disciplinary proceeding and in a criminal proceeding; coupled with the fact of initiation of disciplinary proceeding in this case is independent of the criminal proceeding; we do not find this plea of the applicant as tenable. The view taken by the Apex Court in this regard in the U.P. State Road Transport Corporation vs Suresh Chand Sharma and the Divisional Controller, Karnataka State Road Transport Corporation vs M.G. Vittal Rao (supra) as cited by us in para 6 above would have a bearing on this aspect.
7. The applicant has impugned the orders of the Disciplinary Authority and the Appellate Authority raising the pleas of their being non-speaking besides not considering the submissions made by him. We have gone through the necessary orders as well as the reply to the order of disagreement filed by the applicant as also his appeal before the Appellate Authority.
In his representation to the Disciplinary Authority as a reply to the order of disagreement, the applicant had made the following submissions: (i) the applicant had been working as a Lab Technician in the Department of Gastroenterology and not in the ECG Lab; (ii) the Inquiry Officer had held the Article of Charge as not proved; (iii) acquittal by the criminal case; (iv) the paramount duty of the disciplinary authority to produce the complainant and other material documents and witnesses listed in the charge sheet; (v) while passing the orders of acquittal, the criminal court had taken note of the fact about there being no independent witness including the complainant or a public witness; (vi) certain alleged infirmities in the Sexual Harassment Committees report; and (vii) the principle of law that a judicial verdict always prevails over and above all administrative decisions.
In the appeal against the order of Disciplinary Authority, the submissions made pertained to : (a) non-entitlement of the Sexual Harassment Committee to consider the complaint as the complainant was not an employee of AIIMS; (b) allegations of certain infirmities in the deposition before the Sexual Harassment Committee; (c) deposition of the ECG Technician Ved Pal about having done the ECG himself; (d) the DA not elaborating the reasons for disagreement and the contention of non-application of mind by the DA All these points have been raised in the OA before us and have been considered at length and not found to be tenable for one reason or the other. We also find it apt to reiterate at this point the settled law about the complicated procedures of Evidence Act or the CPC and Cr. PC not being applicable in disciplinary proceedings.
We do not find any point raised by the CO, non-consideration of which can be said to have caused a prejudice to the applicant. We also note the fact of the DAs Order mentioning about the penalty in question having been imposed after considering the report of the Inquiry Officer, the representation of the Charged Official, the evidence on record, facts and circumstances of the case and after taking all relevant factors into consideration. Likewise the Order of the Appellate Authority in Para 5 clearly spells out the various reasons for which the Order of the Disciplinary Authority has been up held and the appeal of the CO not found tenable.
Applying the principle of substantive justice and the ultimate test of any procedural requirement being justified on the litmus test as to whether it has caused any prejudice to the CO, this contention is also not found to be tenable.
8. To conclude, having carefully considered the present case in its totality; keeping in view the broad parameters of judicial review and focusing on various pleas raised on behalf of the applicant, we have not found them as tenable. Applying the law as laid down by the Honble Apex Court in MP State Agro Industries Corporation Ltd vs Jahan Khan as well as in B.C. Chaturvei vs UOI & Ors (supra), we have also not found the present case as one warranting judicial intervention in what is undisputably within the legitimate domain of the respondents.
Before concluding, we would like to specify that as the suspension order had been issued in contemplation of the disciplinary proceedings and there was no averment before us of the same having been vitiated by any procedural infirmity, we have not considered it necessary to discuss it separately.
Resultantly, the OA is found to be devoid of merit and is dismissed with no order as to costs.
(Dr. Dharam Paul Sharma) (Dr. Veena Chhotray)
Member (J) Member (A)
/pkr/