Central Administrative Tribunal - Allahabad
U K Shukla vs Union Of India on 19 April, 2024
1
Reserved on 09.04.2024
Pronounced on 19.04.2024
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH, ALLAHABAD
Original Application No.1546 of 2009
Present:
Hon'ble Mr. Justice Om Prakash VII, Member-(Judicial)
Hon'ble Mr. Mohan Pyare, Member- (Administrative)
U.K. Shukla, S/o Late Pandit Bacchulal Shukla,
R/o 29 A/A Udayan, Pt-I Pilibhit, Bypass Road,
Mahanagar, Bareilly (U.P.)
retired on 31.07.2007 from the post of AAO IVRI,
Izatnagar, Bareilly.
...........Applicant
By Advocate: Shri S.K. Singh Vashisth
Versus
1. Secretary Indian Council of Agriculture Research (ICAR) Krishi
Bhawan, New Delhi.
2. Hon'ble President India Council of Agriculture Research (ICAR)
Krishi Bhawan, New Delhi.
3. The Director General ICAR, Krishi Bhawan, New Delhi.
4. The Under Secretary (Vig.) for on behalf of President ICAR Krishi
Bhawan, New Delhi.
5. The Director IVRI Izatnagar, Bareilly (U.P.)
6. Chief Admn Officer IVRI, Izatnagar, Bareilly (U.P.).
------------Respondents
By Advocate: Shri R.K. Srivastava
ORDER
Delivered by Hon'ble Mr. Mohan Pyare, Member-(Administrative) Shri Pawan Kumar Tripathi, learned counsel for the applicant and Shri M.K. Sharma, learned counsel for the respondents are present. 2
2. By way of this original application the applicant has sought the following reliefs:-
"(i) To issue suitable order or direction by way of certiorari quashing the order dated 23.09.2009, 06.11.2007 & 28.04.2007 shown as Annexure A-1A, A-1, & A-2 to this O.Α. issued by Respondent no.4.
(ii) To issue suitable order or direction by way of mandamus directing the Respondent no.4 & 5, and restore the pay of the applicant prior to punishment order dated 28.04.2007 to release the held up of increments of the Applicant and further be directed to revise pension of the applicant and to pay arrears with 18% penal interest.
(iii) To issue suitable order or direction by way of mandamus to Respondents to decide all his representations by a reasoned and speaking order as per law and rules on the matter.
iv) To issue suitable order or direction as Tribunal may deem fit & proper in the circumstance in the case of the applicant.
v) To award the cost of the original application."
3. The brief facts of the case are that the applicant was appointed on 15.05.1971 as Lower Division Clerk in IVRI Mukteshwar, Uttaranchal, as UDC and after due promotions he was posted as Assitt Admn Officer in IVRI Izatnagar, Bareilly till retirement on 31.07.2007. The period of several harassment of Mrs. Anjali Kushwaha pertains to 24.10.2005 to 23.11.2005 at IVRI Izatnagar, Bareilly. Mrs. Anjali Kushwaha T-1 (Labs) of IVRI Izatnagar made complaint on 04.05.2006 of harassment by CAO & AAO Sri Thomas & Sri U.K. Shukla for her transfer to Bangalore & retaining her file of her transfer at Bareilly. The Respondent no.1 has been appointed in the complaint committee on 24/26.07.2006 to investigate into the complaint of Mrs. Kushwaha dated 04.05. 2006 and directed the applicant to appear before the committee on 10.07.2006. The Daily ordersheet was prepared on 22.08.2006 by the Complaint Committee as assembled at 3.00 PM in Room No. 207-A Krishi Bhawan, New Delhi with 6 members including Shri Sujit Kumar Mitra and applicant appeared before the committee. The applicant had given written 3 Statement to the complaint committee on 22.08.2006 in the questionnaire format denying the charges against him with regard to transfer and sexual harassment of the Ms. Kushwaha at Bangalore. The memorandum of charges were issued on 28.03.2007 to the Applicant by Shri Rajiv Mangotra under Secy (Vig.) of ICAR New Delhi for making representation against report within 15 days for punishment/penalty to the Applicant under CCS (Conduct) Rules, 1965. The Senior Admn. Officer IVRI Izatnagar Bareilly sent letter on 05.04.2007 to Shri Rajiv Mangotra under Secy ICAR (Vig) New Delhi with acknowledgment of the Applicant and Shri CP Thomas CAO. Sri Rajiv Mangotra under Secry ICAR New Delhi sent letter on 12.04.2007 to applicant Director IVRI Izatnagar in connection of acknowledgement dated 07.04.2007 in reference of council letter dated 28.03.2007 for providing the copies of documents of the aforesaid letter received by the Applicant on 30.04.2007 which was received by applicant. The Applicant made appeal on 08.06.2007 before President ICAR, New Delhi. The applicant submitted representation on 10.06.2007 to the President ICAR New Delhi for reducing increments of pay for Rs.8300 to Rs.7700 till superannuation and handed over personally at ICAR New Delhi on 11.06.2007. The applicant has given a detailed appeal on 31.07.2007 to the President ICAR New Delhi against the illegal, unlawful arbitrary, and malafide order passed against him which is against the judgments of Hon'ble Supreme Court, Hon'ble High Court, Tribunal and is also against CCS (CC&A) Rules 1965. On 27.10.2007 the AAO (Admn.) IVRI Izatnagar Bareilly has given offer of engagement of consultants to the Applicant w.e.f.
01.11.2007 to 31.03.2008. The Senior Admn. Officer IVRI Izatnagar Bareilly sent a letter on 18.02.2008 to Sri Ram Autar Deputy Secy (Vig.) ICAR New Delhi forwarding Appeal dated 06.11.2007 of the Applicant alongwith his opinion & enclosures. The Senior Admn. Officer IVRI Izatnagar, Bareilly has given extension on 07.04.2008 for engagement of consultant to the Applicant from 01.04.08 to 30.04.2008. The applicant sought information on 21.08.2008 under RTI Act 2005 submitted reminder on 12.11.2008 regarding pending 4 appeal dated 10.1.2008. The APIO IVRI Izatnagar Bareilly sent a letter on 18.11.2008 to the applicant as sought information under RTI Act 2005. The applicant sent a representation on 18.12.2008 to the Respondent no.1, for revision of pension, submitted reminder on 11.05.2009 to the Director IVRI Izatnagar, Bareilly in connection of releasing 4 increments. The ICAR Krishi Bhawan, New Delhi vide office order No.4(4)/206-(Vig.) dt. 28.04.2007 issued penalty order stating therein that the pay of Shri U.K. Shukla AAO reduced by three stages from Rs.8300 to Rs.7700/- in the time scale of Rs.6500-10500 with immediate effect till his retirement on superannuation. It further directed that Shri U.K Shukla will not earn increments of pay during the period of said reduction." The said order was issued by Shri Rajiv Mangotra under Secy (Vig.) ICAR. New Delhi without his competence, Authority and Jurisdiction illegally, unlawfully, arbitrarily. malafidely, against Hon'ble Supreme Court, High Courts, & CAT Judgments & against CCS (CC&A) Rules 1965. CCS(CCA) Rules, 1965 which is against principle of natural justice & FR Rules. The Applicant is challenging the appellate order dated 06.11.2007 issued by Shri Rajiv Mangotra under Secy. (Vig.) on behalf of DG. ICAR New Delhi. The punishment and Appellate order has been issued by the same authority on behalf of DG & President, ICAR, New Delhi. The respondent No.5 issued letter to the Sector Office (Vigilance) ICAR Krishi Bhawan, New Delhi for issuance of Imposition of penalty of "Reduction of lower Stage" on Applicant. Aggrieved by the action of the respondents the applicant has filed the present original application.
4. In their counter reply the respondents have submitted that Ms. Anjali Kushwaha made a complaint dated 04.05.2006 against Shri C.P. Thomas CAO, IVRI and Sri U.K. Shukla AAO, IVRI alleging her sexual harassment which was referred to the complaint committee of ICAR Hqrs for prevention of sexual harrassment of women at work place. The complaint committee conducted the inquiry and in its report submitted on 02.03.2007 with finding that Sri C.P. Thomas, CAO, IVRI and Sri U.K. Shukla, AAO, IVRI have tried to cause or 5 intimidated Smt. Kushwaha with ulterior motives and recommended action against both the officials. The report of the committee was forwarded to Sri U.K. Shukla vide memo dated 28.03.2007 who made his submissions vide letter dated 19.04.2007 denying the allegations. Keeping in view the gravity of the charges and taking into account the submissions dated 19.04.2007, the Disciplinary Authority i.e. D.G, ICAR imposed the penalty vide order dated 28.04.2007, by which the pay of Sri U.K. Shukla, AAO has been reduced by three stages from Rs. 8300/- to Rs.7700/ in the time scale of pay of Rs.6500- Rs.10,500/- with immediate effect till his retirement on superannuation; with a direction that Sri U.K. Shukla will not earn increments of pay during the period of said reduction. Sri U.K. Shukla preferred an appeal dated 31.07.2007 and the same was rejected on merits vide order dated 06.11.2007. Subsequently Sri U.K. Shukla filed an OA No 624 of 2009 before CAT Allahabad Bench against Council's order dated 06.11.2007 and 28.04.2007. The operative portion of the judgment reads as under:-
"4. In view of the above discussion, we hereby set aside the appellate order dated 06.11.2007 (annexure A-1) and remand the matter back to the Appellate Authority to decide the appeal by a speaking order taking all the grounds taken in the Appeal within a period of three months from the date of receipt of a certified copy of this order. The decision taken shall be communicated to the applicant forthwith."
5. The Court vide order dated 05.06.2009 set aside the Appellate authority's order dated 06.11.2007 and remanded the matter back to the Appellate Authority to decide the appeal by passing a speaking order taking all the grounds raised in the appeal. In compliance of the Courts' order the appeals preferred by Sri U.K. Shukla were re-examined and the appeal dated 31.07.2007 were rejected by the President, ICAR through speaking order dated 23.09.2009. The ICAR Complaint committee constituted under Rule 3C of CCS (Conduct) Rules 1964 for inquiring the charges of sexual harassment of Smt. Kushwaha by the applicant (Sri U.K. Shukla) reported the charge as proved against the applicant (Sri Shukla) which was communicated to Shri Shukla within 15 days. The applicant (Sri Shukla) vide his acknowledgement dated 6 05.04.2007 asked for the missing annexures attached with the OM dated 28.03.2007. The missing annexures were provided to him vide letter dated 12.04.2007 before issuing the penalty order dated 28.04.2007. The contention of the applicant (Sri Shukla) that the penalty order was signed on holiday i.e. on Saturday is irrelevant as the order can be signed on holidays in the interest of public exigencies and signing any order on holidays does not vitiate its legality. Subsequently a complaint committee headed by Dr. (Mrs.) Tej Verma and two lady members viz. Smt. Seema Malhotra, Director from an NGO & Smt Roja Sethumadhavan, Desk Officer was constituted. There is no provision which made it mandatory to include the lady members of the Institute in the committee. Visiting the place of incidence is irrelevant in this case as the harassment done by the applicant (Sri. Shukla) was verbal in nature. Non- examination of Sri S.K. Agarwal as a witness by the committee loses its value as the applicant (Sri Shukla) had himself admitted in his deposition dated 22.08.2006 that Smt. Kushwaha met him regarding her transfer. As per CCS (CCA) Rule 14 (2) "where there is a complaint of sexual harassment within the meaning of Rule 3 C of the CCS (Conduct) Rules 1964 the complaint committee established in each Ministry or department of Office for inquiring into such complaints shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the complaint committee shall hold, if separate procedure has not been prescribed for the complaint committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules and there is no provision of formal appointment of an Inquiry officer and Presenting Officer in these cases. The applicant never asked for any defense assistant before the complaint committee at any stage. The penalty dated 28.04.2007 was imposed by the DG, ICAR as per the provisions of CCS (CCA) Rules,1965 as this was a composite case, and Sri C.P. Thomas, Ex-CAO, IVRI was another official in this case, in whose case Disciplinary Authority was DG, ICAR. It is stated that the orders of Disciplinary Authority and 7 Appellate Authority have been issued by Sri Rajiv Mangotra, US (Vig) in a legal and lawful manner. As per Bye-Law 42 of the ICAR, US (Vig), ICAR is authorized to authenticate the orders made in the name of the President and Director- General, ICAR under the CCS (CCA) Rules, 1965 and CCS (Conduct) Rules, 1964. Hence, the penalty order dated 28.04.2007 and Appellate Authority's order dated 06.11.2007 and 23.09.2009 are legally valid as it was signed by Shri Rajiv Mangotra, US (Vig), who was competent to sign the Council's order dated 06.11.2007 and 23.09.2009.
6. In his rejoinder affidavit the applicant has reiterated almost the same facts which have been narrated in the original application.
7. Heard the rival submissions of the parties and gone through the documents available on record.
8. The learned counsel for the applicant has submitted that the applicant was not authorized to transfer the complainant, rather it was Mr. C.P. Thomas who was competent so there is no question of harassment meted out by applicant to complainant and for the same allegations co-accused Mr. C.P. Thomas (CAO) was terminated which order was set aside by this tribunal and direction was given to re-consider the matter. No ingredient of sexual harassment given in Vishaka is found in the above case.
9. The applicant has relied upon the judgment of Hon'ble Supreme Court in the case of D.S. Grewal Vs Vimmi Joshi and Others (2009 All. C.J. 450). Relevant para of the judgment reads as under:-
The Court furthermore defined `sexual harassment' to include :-
"For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
(a) Physical contact and advances;
(b) A demand or request for sexual favours;
(c) Sexually-coloured remarks;
(d) Showing pornography;8
(e) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
And submitted that complaint against the applicant does not fall under any categories enumerated above. The above contention of the learned counsel for the applicant is not correct and allegations under adjudication definitely comes under clause (e).
10. He further relied on the judgment of this Tribunal in OA No.539/2007 in which co-accused has challenged the action against him. The above original application has been allowed so applicant who was not in the competence to take any action on the transfer application of the complainant should be exonerated.
11. The analysis of the judgment in OA No.539/2007 shows that the issue involved in the said original application was different. The applicant has challenged the impugned punishment order on applicant citing the same grossly disproportionate to the charges against him. The above fact was examined by this Tribunal and impugned punishment order dated 28.04.2007 was set aside and remitted the matter to the disciplinary authority to reconsider the facts of the case in the light of order in that OA and pass a fresh order as per provisions of law. So it cannot be said that the above OA was allowed and applicant in that OA i.e. in the case of C.P. Thomas was exonerated so the claim of the learned counsel for the applicant here to give same relief does not hold good.
12. Learned counsel for the applicant filed written submissions and submitted that punishment order against the applicant has been passed in violation of Rule 11 (11) (ii) of CCS (CCA) Rules as the period of punishment is not specifically mentioned.
13. Rule 11 of CCS (CCA) Rules, 1965 reads as under:-
9
"11) Reduction to a lower service, grade or post or to a lower time-scale---
i).....
ii) The extent (in terms of years and months), if any, to which the period referred to at (i) above shall operate to postpone future increments on restoration after the specified period.
The period specified under this sub-clause shall in no case exceed the period specified under sub-clause (i) above. It has been decided in consultation with the Ministries of Law and Finance that in future, an order imposing the penalty of reduction to a lower service grade or post or to a lower time-scale should invariably specify-
(i) the period of reduction, unless the clear intention is that, the reduction should be permanent or for an indefinite period, and
(ii) whether on such re-promotion, the Government servant will regain his original seniority in the higher service, grade or post of higher time-scale which has been assigned to him prior to the imposition of the penalty.
If the order of reduction is intended for an indefinite period the order should be framed as follows-
"A is reduced to the lower post/grade/service of X until he is found fit by the competent authority to be restored to the higher post/grade/service of Y. In cases where it is intended that the fitness of the Government servant for re-promotion or restoration in his original position will be considered only after a specified period, the order should be made in the following form-
"A is reduced to the lower post grade/service of X until he is found fit, years from the date of this order to be restored to the after a period of higher post of Y."
A careful analysis of the above clearly indicates that order passed by respondents is not in violation of above rule.
14. We found that the punishment has been given upto the retirement of the applicant which is specific and denotes clearly the time period for which punishment was imposed as the date of retirement is fixed. There is no contravention of Rule 11 at all.
15. The learned counsel for the respondents have also filed written submissions and taken the plea that complaint was made against Shri C.P. Thomas (CAO) and Shri U.K. Shukla (AAO) IVRI alleging sexual harassment and committee was constituted as per DOPT OM dated 03.11.2006. The committee found the allegation proved against the applicant and based on the 10 recommendations of the enquiry committee competent disciplinary authority and appellate authority have passed order duly taking into account the relevant rules. The order passed by the disciplinary authority and appellate authority is correct and not vitiated by any infirmities. The applicant has not been able to establish his contention. The OA of the applicant is devoid of merit and should be dismissed with costs.
16. The daily ordersheet submitted by the committee headed by Tej Verma dated 22.08.2006 mentions that questions were made in the application of complainant on advice of the applicant and assured the complainant that her salary slip will be released after completion of all formalities. The complaint regarding her transfer to Bangalore was also corrected by applicant and applicant advised her to meet the director as he is competent authority for transfer/posting. The enquiry report found that applicant has misused their position as senior most administrative officer of the institute. The relevant portion of the recommendation is reproduced below:-
"In view of the facts given above and the observations made by the Committee and other relevant documents, the Committee found that Sh. C.P. Thomas, CAO, IVRI and Sh. U.K. Shukla, Sr. A.A.O. IVRI has misused their position as senior most administrative official of the Institute. Smt. Kushwaha inspite of the fact that the offer of appointment of Smt. Kushwaha does not indicate that the post was meant for PD, ADMAS and she was transferred time and again to PD, ADMAS on the plea that her appointment was made against the sanctioned post of T-3. In this context, the interpretation of the Supreme Court on sexual harassment as produced in is very noteworthy. Sh. C.P. Thomas and Sh. Shukla have tried to cause or intimidate Smt. Kushwaha with the ulterior motive. also deliberately avoided coming before the Committee.
10. Keeping in line with the spirit of the Code of Conduct, the Committee recommends that Sh. C.P. Thomas, CAO, IVRI, Izatnagar and Sh. U K Shukla, AAO, IVRI, Izatnagar, should be given punishment/penalty as deemed appropriate under CCS (Conduct) Rules.
The report is submitted for taking necessary action by the competent authority."
17. The statement of the complainant is also although not properly drafted but definitely it accuses harassment by the applicant. The above enquiry was conducted by providing due opportunity to the applicant and orders were 11 passed by the competent authority taking into account relevant rules and regulations.
18. We are of the considered opinion that nowhere the provisions of the rules and regulations have been violated and the applicant has miserably failed to establish his contention. On the basis of the above discussions the original application lacks merit and liable to be dismissed. Accordingly, the original application is dismissed.
19. On the basis of above discussions, we are of the considered opinion that the applicant has not been able to establish his claim and the original application is liable to be dismissed. Accordingly, the original application is dismissed. No Costs.
All the related MAs stands disposed of.
(Mohan Pyare) (Justice Om Prakash VII) Member (Administrative) Member (Judicial) /Neelam/