Central Administrative Tribunal - Chandigarh
S P S Sondhi vs Ut Police Chandigarh on 1 December, 2023
1- O.A. No. 1319/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(Third Member Reference)
(Under Section 26 of the Administrative Tribunals Act, 1985)
Original Application No.060/1319/2018
Pronounced on: 01.12.2023
Reserved on:01.11.2023
CORAM: HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
S.P.S. Sondhi son of Sh. Amar Chand Sondhi, aged 51 years, DSP
(Traffic Central), Union Territory, Sector 9, Chandigarh.
....Applicant
(By Advocate: Mr. Yogesh Putney)
Versus
1. Union of India through the Secretary, Government of India (U.T.
Chandigarh Branch), Ministry of Home Affairs, New Delhi - 110001.
2. Chandigarh Police through the Director General of Police, Police
Headquarters, Additional Deluxe Building, Sector 9, Chandigarh -
160009.
3. The Director, Social Welfare, Women & Child Development
Chandigarh Administration, UT Chandigarh, Sector 17, Chandigarh-
160017
... .Respondents
(By Advocate: Mr. Aseem Rai)
ORDER
Per: SURESH KUMAR BATRA MEMBER (J):-
1. The instant matter is a third Member reference under Section 26 of the Administrative Tribunals Act, 1985. While deciding the instant Original Application, a difference of opinion arose between the two Members, sitting in Division Bench of Central Administrative Tribunal, Chandigarh Bench as Hon‟ble Mr. Sanjeev Kaushik, Member (J) declared the impugned Enquiry Report (Annexure A-1) null and void, having not been completed within the prescribed period of 90 days in terms of 2- O.A. No. 1319/2018 Section 11 (4) of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (hereinafter referred to as Act, 2013) while Hon‟ble Mrs. Ajanta Dayalan, Member (Administrative) has dismissed the Original Application observing that even though there is delay in submission of inquiry report in this case beyond the time line stipulated in the Act, 2013 the inquiry report is comprehensive and hold the applicant guilty.
2. In the absence of concurrence, the judgment could not be finalized and the matter was referred to the Principal Bench of C.A.T for placing it before the Hon‟ble Chairman. Vide order dated 07.02.2023, the Hon‟ble Chairman was pleased to nominate the undersigned as the third Member to take a decision in view of the above deadlock.
3. I have carefully gone through the pleadings of the case, the opinion and reasoning given by the Hon‟ble Member (A) and Hon‟ble Member (J) in their respective orders.
4. The applicant SPS Sondhi, DSP (Traffic Central), UT, preferred the Original Application challenging the report dated 13.10.2018 made by the Sexual Harassment Committee against him and sought issuance of a direction to respondents to drop the proceedings initiated against him on various grounds, inter-alia, that
(i) The complaint made by victim was false.
(ii) The Committee did not afford opportunity to the applicant nor the procedure prescribed under Rule 16.24 of the Punjab Police Rules, 1934 was followed as the Inquiry conducted by the ICC is deemed to be Inquiry under the Punishment & Appeal Rules in view of the O.M. dated 04.08.2005 issued by the Nodal Ministry 3- O.A. No. 1319/2018 i.e. DoP&T on the basis of direction of the Hon‟ble Supreme Court.
(iii) The procedure prescribed under Section 11 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 has not been followed.
5. The Hon‟ble Member (A) observed that there was no illegality in the enquiry report. It was also observed that the Act does provide for a limitation of 90 days for submission of enquiry report. However, a mere delay in submission of report cannot be taken to work against a victim of sexual harassment. It was further observed that the applicant has tried to influence the witnesses. With these observations, the Hon‟ble Member (A) opined that there was no merit in the Original Application and the same was dismissed.
6. The Hon‟ble Member (Judicial), while disagreeing with the view taken by the Hon‟ble Member (a) has observed that as per Section 11 (4) of the Act, 2013, it is mandatory that the enquiry under sub section (1) shall be completed within a period of ninety days. Since the enquiry was not completed within the prescribed period provided in the Act, 2013, the same was held to be void ab initio considering the view taken by the Hon‟ble Karnataka High Court on the same issue in the case of Professor Giridhar Madras Vs. The Indian Institute of Science and Others.
7. The limited question set out for adjudication by the 3rd Member, which was referred to Hon‟ble Chairman under Section 26 of the Administrative Tribunals, Act is as under:-
"As to whether in terms of Section 11(4) of Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act 4- O.A. No. 1319/2018 2013, if any enquiry is not completed by the relevant authorities within the mandatory period of 90 days, would it not be invalid and inoperative?"
8. I heard the learned counsel for both sides on the limited question as to whether the enquiry report of ICC is invalid since the same has not been submitted within the prescribed period of 90 days as provided in the Act, 2013. Learned counsels for both the sides have not touched the merit of the case during arguments.
9. For just decision of the issue, the relevant Sections 11 and 13 of the Act 2013 have been perused and are reproduced hereunder for better understanding of the issue for adjudication.
"11. Inquiry into complaint-- (1) Subject to the provisions of section 10, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable 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 Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code (45 of 1860), and any other relevant provisions of the said Code where applicable:
Provided that where the aggrieved woman informs the Internal Committee or the Local Committee, as the case may be, that any term or condition of the settlement arrived at under sub-section (2) of section 10 has not been complied with by the respondent, the Internal Committee or the Local Committee shall proceed to 5- O.A. No. 1319/2018 make an inquiry into the complaint or, as the case may be, forward the complaint to the police:
Provided further that where both the parties are employees, 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 enabling them to make representation against the findings before the Committee. (2) Notwithstanding anything contained in section 509 of the Indian Penal Code (45 of 1860), the court may, when the respondent is convicted of the offence, order payment of such sums as it may consider appropriate, to the aggrieved woman by the respondent, having regard to the provisions of section 15. (3) For the purpose of making an inquiry under sub-section (1), the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a Civil Court the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely:--
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b)requiring the discovery and production of documents;
and
(c) any other matter which may be prescribed.
(4) The inquiry under sub-section (1) shall be completed within a period of ninety days."
13. Enquiry Report On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case 6- O.A. No. 1319/2018 may be, the District Officer within a period of ten days from the date of completion 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 respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter.
(3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent 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 misconduct 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 service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section 15:
Provided that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty 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 recovery of the sum as an arrear of land revenue to the concerned District Officer.
(4) The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him."
From the co-joint reading of the Sections 11 and 13 of the Act, 2013, it is clear that the enquiry shall be completed within a period of 90 days by the Committee and thereafter the ICC shall provide a report of its findings to the employer within a period of 10 days from the date of completion of the inquiry. On submission thereof, the employer shall act upon the recommendation within sixty days of its receipt. 7- O.A. No. 1319/2018
10. From the perusal of provisions of the Act 2013 and Rules framed there under, it is evident that certain obligations have been casted upon the ICC and the employer. Moreover, if the employer fails to comply with the provisions of the Act 2013, a penalty can be imposed upon him. The Act, 2013 and rules framed there under also provide a provision for punishment for false or malicious complaint and false evidence notwithstanding the other provisions. The Act 2013 nowhere suggested that, if the ICC does not complete the inquiry in the stipulated period of 90 days, the inquiry report shall be null and void. In the absence of any specific provision under the Act, 2013, such legal proposition cannot be assumed. The sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution of Indian and right to practice any profession or to carry on any occupation, trade or business, which includes a right to a safe environment free from sexual harassment. The protection against sexual harassment and the right to work with dignity are universally recognised human rights by international conventions and instruments such as Convention on the elimination of all Forms of Discrimination against Women. The object of the Act, 2013 seeks to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto. Keeping in view the object of the Act, 2013, the contention of respondents is not acceptable there being no prejudice to the applicant.
11. Learned counsel for the applicant has referred to a judgment of the Hon‟ble Supreme Court in the case of Commissioner 8- O.A. No. 1319/2018 of Customs and Central Excise Hongo India (P) Ltd. and Ors, JT 2009(7) SC83 wherein it has been observed that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act.
12. Learned counsel for the respondents has placed reliance upon various judgments detailed herein below with operative part thereof. In the case of Sri Pankaj Kumar Vs. Union of India & Ors in WP(C) No. 408/2013 (DD 14.2.2017), wherein the Hon‟ble High Court of Tripura observed at para 36 as under:-
"36. The Apex Court in catena of decisions observed that the Courts/Tribunals would deal with the cases relating to woman in a realistic manner and not allow the offender to escape on account of procedural technicalities or insignificant lacunas in the evidence and materials as otherwise the offender would receive encouragement and the victims would be totally discouraged by the offender going unpunished. The Apex Court further observed that the Court and Tribunals are expected to be sensitive in the cases involving offences against women."
13. The Hon‟ble High Court of Tripura, while holding that the provisions of Section 11(4) of the Act cannot be said to be mandatory and the time limit provided in Section 11(4) cannot be seen as a terminal point beyond which the inquiry cannot be continued , has held in the case of Vinay Kumar Rai Vs. The Union of India and Ors., (W.P.(C) 596/2019, decided on 17.09.2021) as under:-
"The contention that the inquiry was not completed within ninety days as provided in sub-section (4) of Section 11, therefore, must be set aside does not stand to logic at all. Section 11 of the Act pertains to inquiry into complaint. Sub- section (1) of Section 11 provides that subject to the provisions of Section 10, the Internal Committee or the Local 9- O.A. No. 1319/2018 Committee, as the case may be, proceed to make inquiry into the complaint in accordance with the provisions of the service rules and if prima facie case exists, forward the complaint to the police within seven days for registering the case under Section 509 of the Indian Penal Code. Sub Section (4) of Section 11 provides that the inquiry under sub-section (1) shall be completed within a period of ninety days. Sub-section (4) of Section 11 nowhere provides the consequences for not completing the inquiry within ninety days. Ordinarily as per the principles of statutory interpretation when a provision which provides for a time limit is not coupled with any penal or adverse consequences in completing the task so envisaged under the statue, is not considered mandatory. In any case, it would be wholly illogical that for the inability of the committee to complete the inquiry into the complaint of sexual harassment the aggrieved person would suffer the fate of the complaint being terminated without conclusion. In plain terms, the legislative intent is very clear namely that such complaint should be treated with seriousness and should be completed as soon as possible so that if the allegations are correct the aggrieved person may get justice and respite from further harassment and if allegations are found to be untrue the person against whom such complaint is made may get honourable exoneration. However, this time limit provided in sub-section (4) of Section 11 cannot be seen as a terminal point beyond which the inquiry cannot continue." 10- O.A. No. 1319/2018
14. The Hon‟ble High Court of Delhi in the case of CA Nitesh Parashar Vs. Institute of Chartered Accountants of India ICAI & Ors (W.P.(C) 88/2023 on 05.01.2023 followed the view of the Hon‟ble High Court of Tripura in the case of Sri Vinay Kumar Rai (supra) while rejecting the plea of the petitioner therein for interim relief and held as under:-
"19. There is, however, no substance in the contention of the petitioner that as the inquiry proceeding has not been concluded within a period of 90 days, the same will be vitiated. The petitioner has not pointed out any prejudice caused to him on account of delay. It is not the case of the petitioner that the delay is attributable to the respondent no. 3. I am prima facie of the view that the complaint of sexual harassment and the inquiry proceeding emanating therefrom cannot be quashed merely for the reasons that the internal complaints committee failed to complete the inquiry within the time frame given in Section 11(4) of the Act. Needless to say, that such complaints containing allegations of sexual harassment deserves to be treated with a certain amount of seriousness and responsibility and accordingly, the same have to be inquired into and taken to their logical conclusion for it is both in the interest of the complainant as well as the person against whom the allegations of sexual harassment have been leveled.
20. Seen in this backdrop, the provisions of Section 11(4) of the Act cannot be said to be mandatory. Reference can advantageously be made to the decision of the High Court 11- O.A. No. 1319/2018 of Tripura in Vinay Kumar Rai Vs. The Union of India and Ors., W.P.(C) 596/2019, decided on 17.09.2021, wherein it was observed that the time limit provided in Section 11(4) cannot be seen as a terminal point beyond which the inquiry cannot be continued.
21. The petitioner also places reliance on the decision of Supreme Court in Popat Bahiru Govardhane etc v. Special Land Acquisition Officer & Anr, (2013) 10 SCC 765 to contend that where a period of limitation has been provided, it cannot be condoned unless there is a provision for the same. The decision relied upon by the petitioner is on the point that the period of limitation for filing application under Section 28A of the Land Acquisition Act, 1894 is three months from the date of award and the same cannot be condoned. The said judgment does not apply to the facts of the present case as the question raised in the present case is not of condonation of delay but pertains to whether the inquiry proceedings before the ICC will vitiate after the inquiry of stipulated period of 90 days. Therefore, the benefit of the said decision will not enure to the petitioner.
22. In view of the above, no prima facie case is made out for grant of interim relief. Accordingly, the application for interim relief is dismissed."
15. Recently, in the case of Union of India and Others Vs. Dilip Paul, (Civil Appeal No. 6190 of 2023 decided on06.11.2023), the 12- O.A. No. 1319/2018 Hon‟ble Supreme Court of India, while allowing the appeal of Union of India and upholding the penalty on respondent has observed as under:-
"43. As regards the manner in which the court ought to exercise its powers of judicial review in matters of disciplinary proceedings particularly one pertaining to sexual harassment, this Court in Apparel Export Promotion Council v. A.K.Chopra reported in (1999) 1 SCC 759 observed that the courts should not get swayed by insignificant discrepancies or hyper-technicalities. The allegations must be appreciated in the background of the entire case, and the courts must be very cautious before any sympathy or leniency is shown towards the delinquent. It further held that the courts are obliged to rely on any evidence of the complainant that inspires confidence. The relevant observations are reproduced below: -
"28. ... In a case involving charge of sexual harassment or attempt to sexually molest, the courts are required to examine the broader probabilities of a case and not get swayed by insignificant discrepancies or narrow technicalities or the dictionary meaning of the expression "molestation". They must examine the entire material to determine the genuineness of the complaint. The statement of the victim must be appreciated in the background of the entire case. Where the evidence of the victim inspires confidence, as is the position in the instant case, the courts are obliged to rely on it. Such cases are required to be dealt with great sensitivity. Sympathy in such cases in favour of 13- O.A. No. 1319/2018 the superior officer is wholly misplaced and mercy has no relevance. The High Court overlooked the ground realities and ignored the fact that the conduct of the respondent against his junior female employee, Miss X, was wholly against moral sanctions, decency and was offensive to her modesty. Reduction of punishment in a case like this is bound to have demoralising effect on the women employees and is a retrograde step. There was no justification for the High Court to interfere with the punishment imposed by the departmental authorities. The act of the respondent was unbecoming of good conduct and behaviour expected from a superior officer and undoubtedly amounted to sexual harassment of Miss X and the punishment imposed by the appellant was thus commensurate with the gravity of his objectionable behaviour and did not warrant any interference by the High Court in exercise of its power of judicial review.
"29. At the conclusion of the hearing, learned counsel for the respondent submitted that the respondent was repentant of his actions and that he tenders an unqualified apology and that he was willing to also go and to apologise to Miss X. We are afraid, it is too late in the day to show any sympathy to the respondent in such a case. Any lenient action in such a case is bound to have demoralising effect on working women. Sympathy in such cases is uncalled for and mercy is misplaced."14- O.A. No. 1319/2018
44. Similarly, in Union of India and Others v. Mudrika Singh reported in 2021 SCC OnLine SC 1173, this Court speaking through one of us Dr. D.Y.Chandrachud, CJI., cautioned the courts from invalidating inquiries into sexual harassment on specious pleas and hyper-technical interpretations of the service rules. The relevant observations are reproduced hereunder: -
"47. Before we conclude our analysis, we would also like to highlight a rising trend of invalidation of proceedings inquiring into sexual misconduct, on hyper-technical interpretations of the applicable service rules. For instance, the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 penalizes several misconducts of a sexual nature and imposes a mandate on all public and private organizations to create adequate mechanisms for redressal. However, the existence of transformative legislation may not come to the aid of persons aggrieved of sexual harassment if the appellate mechanisms turn the process into a punishment. It is important that courts uphold the spirit of the right against sexual harassment, which is vested in all persons as a part of their right to life and right to dignity under Article 21 of the Constitution. It is also important to be mindful of the power dynamics that are mired in sexual harassment at the workplace. There are several considerations and deterrents that a subordinate aggrieved of sexual harassment has to face when they consider reporting sexual misconduct of their superior. In the 15- O.A. No. 1319/2018 present case, the complainant was a constable complaining against the respondent who was the head constable - his superior. Without commenting on the merits of the case, it is evident that the discrepancy regarding the date of occurrence was of a minor nature since the event occurred soon after midnight and on the next day. Deeming such a trivial aspect to be of monumental relevance, while invalidating the entirety of the disciplinary proceedings against the respondent and reinstating him to his position renders the complainant's remedy at nought. The history of legal proceedings such as these is a major factor that contributes to the deterrence that civil and criminal mechanisms pose to persons aggrieved of sexual harassment. The High Court, in this case, was not only incorrect in its interpretation of the jurisdiction of the Commandant and the obligation of the SSFC to furnish reasons under the BSF Act 1968 and Rules therein, but also demonstrated a callous attitude to the gravamen of the proceedings. We implore courts to interpret service rules and statutory regulations governing the prevention of sexual harassment at the workplace in a manner that metes out procedural and substantive justice to all the parties."
(emphasis supplied)
16. No doubt, there is a delay in submission of report by the ICC. However, the question is as to whether the delay has vitiated the enquiry proceedings. It is a settled proposition of law that every 16- O.A. No. 1319/2018 inquiry/investigation must be concluded expeditiously. But vitiation of proceedings on the reason for delay in submission of report by the ICC cannot be allowed at the cost of fundamental right of the victim of sexual harassment at work place. The applicant could not establish that any prejudice has caused to him due to delay in enquiry proceeding. Though, both the Hon‟ble Member (J) and Member (A) have found substance in the ICC report, however, the Hon‟ble Member (J) declared the ICC report null and void merely on the ground that the ICC has not completed and submitted the inquiry report within the prescribed period. The period prescribed in Section 11(4) the Act i.e. 90 days for completion of enquiry cannot be said to be mandatory as held by the Hon‟ble High Court of Tripura in the case of Vinay Kumar Rai (supra), followed recently by the Hon‟ble High Court of Delhi in the case of CA Nitesh Kumar (supra). The judgment of Commissioner of Customs and Central Excise (supra) relied upon by the applicant relates to the power of the Hon‟ble High Court to condone the delay in presentation of reference application under Central Excise Act, 1944 beyond the prescribed period by applying Section 5 of the Limitation Act 1963. The judgment is not directly applicable to the case in hand.
17. The Hon‟ble Member (J), though, observed that the impugned enquiry report, having not been completed within the prescribed period of 90 days in terms of Section 11(4) of Act of 2013, becomes null and void, yet further directed that since there is finding against the applicant in the Inquiry Report relating to sexual harassment, therefore, it being misconduct, the respondents can proceed against him under the relevant Discipline and Appeal Rules for alleged misconduct, wherein they have vast power to deal with such kind of 17- O.A. No. 1319/2018 allegations by making a proper enquiry against the concerned person. In this context, it is noted that the further course of action after submission of enquiry report by the ICC is at the end of the employer as prescribed under Section 13 (3) of the Act, 2013, which provides that where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be, to take action for sexual harassment as a misconduct 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. Therefore, I am of the considered view that the end result flowing from observations and opinion of both the Hon‟ble Member (A) and Hon‟ble Member (J) is that the applicant be proceeded against by the competent authority for the misconduct of sexual harassment, as per rules.
18. With the observations discussed hereinabove and the settled case laws on the issue, relied upon by the respondents, I concur with the view taken by Hon‟ble Mrs. Ajanta Dayalan, Member (A). I am of the unequivocal opinion that the instant case of the applicant is liable to be dismissed and the O.A. is accordingly dismissed. The respondents shall proceed in the matter expeditiously.
Third Member reference stands decided accordingly.
(SURESH KUMAR BATRA) MEMBER (J) „mw‟