Central Administrative Tribunal - Allahabad
All Aala Rizvi Son Of Sri Syed Mohd. Rizvi vs Union Of India Through Its Secretary on 3 May, 2016
Reserved (On 17.02.2016) CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH, ALLAHABAD (This the 03rd Day of May, 2016) Honble Mr. Justice Dinesh Gupta-JM Honble Ms. Nita Chowdhury-AM Original Application No.631of 2010 (U/S 19, Administrative Tribunal Act, 1985) All Aala Rizvi son of Sri Syed Mohd. Rizvi, Ex. T.No.134, M.S., Per No.101931, O.E.F. Kanpur, at Present resident of House No.17/149, Kursawan, The Mall, Kanpur Nagar. . Applicant By Advocate: Shri V.P. Srivastava Versus 1. Union of India through its Secretary, Ministry of Defence, New Delhi. 2. Ordnance Equipment Factories, GP. Head Quarters, G.T. Road, Kanpur throughAddl. Director General, Ordnance Factories. 3. Ordnance Equipment Factory, Kanpur through its General Manager. 4. Work Manager/Administration, Ordnance Equipment Factories, Kanpur. . Respondents By Advocate: Shri Himanshu Singh O R D E R
Delivered by Honble Mr. Justice Dinesh Gupta-Member (J) By filing this Original Application under section 19 of Central Administrative Tribunal Act, 1985 the applicant is seeking following main relief(s):-
(i) to quash/set aside the effect and operation of the impugned orders dated 14.12.209 and 23.5.2006 passed by the respondents No. 2 & 3 (Annexure -1 & 2 to the compilation No.I of this application).
(ii) to direct the respondent No.2 &3 to reinstate the applicant forthwith during the pendency of this application before this Honble Tribunal.
2. The facts of the case, as per O.A., are as under:-
(i) The applicant was initially appointed as Turner in the year 1980 in the office of the respondents. After competing about 11 years of service, he was transferred to E.M.K. Group Telephone Exchanger and thereafter, he was transferred to M.S. Section on 19.07.2002.
(ii) On 21.05.2004 a complaint of sexual harassment was lodged against the applicant by a co-worker Smt. Chaturvedi, Telephone Operator, who was working with the applicant in E.M. Section upto 19.07.2002. Thereafter, vide order dated 19.07.2002, the applicant was transferred from E.M. Section to M.S. Section by the respondent No.3.
(iii) The complainant/molest letter was addressed in the name of respondent No.3 and same has been forwarded for necessary action to the Addl. General Manager (Administration) on 25.06.04 and the copy of the same was received by the G.A. at about 16.00 P.M. but the Chairperson of the Complaint Committee on sexual Harassment of Women, who is not a legally constituted body, given its investigation report on 23.06.2004 before the respondent No.3 which report in itself is contradictory and which clearly proves that in a pre-planned manner the complaint/molest application and report was prepared.
(iv) On 17.08.04, a memorandum/charge sheet was issued by the Factory Manager/Administration against the applicant.
(v) The applicant immediately filed his written statement/objection to the aforesaid charge sheet /memorandum and vehemently denied the allegations and charges as framed in the charge sheet and by way of additional pleas in his objection stated true and correct facts for consideration and decision. The applicant stated that the complainant in support of her averment has not filed any documentary proof or evidence along with date and time. The articles and provisions as mentioned in the alleged charge sheet are totally wrong and incorrect.
(vi) On 19.01.2005, the applicant filed an application before the Inquiry Officer, Jr. Factory Manager (M.F.), Ordnance Equipment Factory, Kanpur with reference No.Vij/D-52/A.A.R/57 regarding service of above referred memorandum/charge sheet which has not been signed by the Disciplinary Authority of aforesaid Ordnance Equipment Factory, Kanpur. The inquiry report as well as Charge sheet/Memorandum is totally bias because the Inquiry Officer has not appointed as Per C.C.A. Rules. The Authority namely, Ashish Kumar is Factory Manager/Administration, who is not a Disciplinary Authority of the applicant. The applicant has drawn the attention of the Inquiry Officer under Rule-11 Article 5s 3 (11) of Central Civil Services Rules-1965 and according to this it is necessary for the Disciplinary Authority to put his signature on the entire documents of Disciplinary proceedings.
(vii) The Inquiry Officer submitted a report to the respondent No.3 and on a bare perusal of it reveals that the Inquiry Officer has not followed the Rules and Provisions of C.C.S. (C.C.&A) and without following the natural justice concluded the Inquiry on the basis of surmises and conjectures alone and submitted its bias report against the applicant without conducting any cross examination of witnesses and complainant Smt. Kiran Chaturvedi. The Inquiry Officer has further committed an illegality in its report because the Inquiry Officer has not applied its own mind and merely on the basis of Complaint Committee report submitted Inquiry report on incorrect ground.
(viii) The respondent No.3 totally relied on Inquiry report and charge sheet and without applying its own mind passed an ex parte order imposing major penalty against the applicant awarded compulsory retirement without considering the additional pleas as stated in the objection dated 19.03.2004. The respondent No.3 cited the judgment and orders of the Honble Supreme Court in its order dated 23.05.2006 (in para No.3 Gha and Cha) which is not applicable in the case of applicant because the respondent no.3 has not followed the principles of natural justice and totally relied on the false and fictitious report and charge sheet submitted by the authorities. The Inquiry report is self contradictory which is an ex parte report against the applicant. The order dated 23.05.06 passed by the respondents No.3 is liable to be set aside and quashed by this Court.
(ix) Being aggrieved by the aforesaid order, the applicant preferred an appeal before the respondent No.2 on 17.06.2006 seeking the relief for quashing the order dated 23.05.2006 passed by the respondent No.3 but the respondent No.2 instead of considering and deciding the above appeal on merits rejected the claim of the applicant and affirmed the order passed by the respondent No.3 vide order dated 14.08.2006.
(x) Against the aforesaid orders, the applicant preferred an O.A. No.1247 of 2006 (Ali Aala Rizvi vs. Union of India & Ors) before this Court which was disposed vide order dated 01.09.2009 with the direction to the applicant to file fresh additional appeal along with earlier appeal before the respondent No.2 and the respondent No.2 decide the same by reasoned and speaking order.
(xi) In pursuance of the aforesaid order dated 01.09.2009 passed by this Court the applicant filed a fresh additional Appeal dated 24.09.2009 along with earlier Appeal dated 17.06.2006 before the respondent No.2 for deciding the same as per order dated 01.09.2009 passed by this Court.
(xii) The respondent No.2 (Appellate Authority) has failed to decide the additional appeal as well as the earlier appeal of the applicant in which all the contentions of the applicant has not been considered by the respondent No.2 and rejected the above appeal of the applicant vide impugned order dated 14.12.2009 without applying its own mind. Hence, this O.A.
3. On notice, the respondents filed counter affidavit and submitted that the applicant was an employee of the respondents factory. One Smt. Kiran Chaturvedi, Telephone Operator, vide her application dated 21.05.2004 stated that the applicant has been harassing her for the last few years since the time he was posed to the Telephone Exchanger. The applicant used to deliberately push her and walk around, tried to told her hands and pass obscene remarks. Initially, she tried to avoid the applicant but after the applicants reinstatement in service from suspension due to some undesirable activities, the applicant started harassing her more and more. The applicant started sending her letters at her home address and to various people in the factory with pamphlets depicting her in poor light and as an immoral lady, thereby tarnishing her image. The applicant used to telephone her at home at unbelievable odd hours in the night with indecent proposals of sexual favour.
4. The applicant was advised/warned on many occasions by the Head of Section/E.M. to desist from such activities and to avoid recurrence of such misconduct.
5. On receipt of the complaint from one Smt. Kiran Chatruvedi, the applicant was charge sheeted and inquiry was initiated by the competent authority and in inquiry the applicant was found guilty of all the charges and the competent authority passed the order of major penalty of compulsory retirement of the applicant. Against the said order, the applicant preferred an Appeal which was also rejected. Although, on the direction of Tribunal in O.A. No. 1247 of 2006 (Ali Aala Rizvi vs. Union of India & Ors) filed by the applicant, the Appellate Authority again reconsider the grounds of appeal as well as additional grounds of appeal filed by the applicant and also passed the reasoned and speaking order rejecting the appeal of the applicant.
6. The applicant filed Rejoinder Affidavit and denying the contention raised by the counsel for the respondents and reiterated the facts as enumerated in the O.A.
7. Heard Shri V.P. Srivastava, counsel for the applicant and Shri Himanshu Singh, counsel for the respondents and perused the pleadings available on record.
8. The respondents filed written submission also while the applicant pointed out the paragraph of his appeal which was not considered or replied by the respondents authority while rejecting his Appeal.
9. Counsel for the applicant submitted that while disposing of the O.A. vide order dated 01.09.2009, the Court has observed as under:-
2. Accordingly, we hereby set aside the order dated 14/08/2006 (Annexure A-1 of the O.A.) passed by the Additional Director General, Ordnance Factory, Kanpur/Appellate Authority. The applicant is directed to file a certified copy of this order along with additional appeal, if so advised, within two weeks from the date of receipt of certified copy of this order before the concerned Appellate Authority and the said authority shall consider and decide the same afresh by a reasoned and speaking order meeting all the contentions raised by the applicant in his earlier appeal dated 17/06/2006 as well as in additional appeal, within a period of three months on receipt of certified copy of the order, as contemplated above, in accordance with law and relevant rules on the subject (as referred above) and communicate the decision to the applicant forthwith.
10. The counsel for the applicant submitted that he filed supplementary grounds of Appeal before the Appellate Authority. However, the Appellate Authority while rejecting his Appeal again failed to consider the grounds mention in the additional Appeal as well as in the original Appeal and whimsically passed the same order as was passed earlier ignoring the specific contentions of the applicant. He further submitted that the Appellate Authority has filed to consider the contention taken by the applicant in the subsequent Appeals Paragraph Nos. 6, 10, 11, 12 and 13 and also failed to consider the paragraph Nos. i] Q] c] Hk] l] j] y] o] g] r] /k and the original appeals Paragraph No. 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13.
11. Counsel further submitted that the Appellate Authority has failed to consider the factual aspect and beside that the inquiry conducted by the Inquiry Officer was against the principle of natural justice and decided ignoring the written submission filed by the applicant.
12. The complainant Smt. Kiran Chaturvedi lodged complaint regarding molest before the respondent No.3 on 21.05.2004 after a gap of 2 years from the date of transfer order dated 19.07.2002, which clearly proves that the aforesaid complaint is an afterthought which is totally wrong and mala fide and same has been lodged against the applicant with an intention to ruin the life of the applicant
13. The counsel for the applicant further submitted that the whole episode of the inquiry was initiated in connivance with one Shri P.K. Chatterji on whose instigation the alleged complaint was made by the complainant who is in collusion with the alleged Shri P.K. Chatterji. He stated this fact in his original appeal as well as in the additional ground. However, the Appellate Authority has filed to consider the all these objection taken by the applicant.
14. He lastly submitted that the order passed by the Appellate Authority is unjustified, arbitrary and without considering the ground taken by him and the same is liable to be quashed.
15. The submission of the counsel for the respondents is that in the case of Vishakha and others V. State of Rajasthan and others (JT 1997 (7) 384), the Honble Supreme Court has laid down guidelines and norms to be observed to prevent sexual harassment of working women. It has been laid down in the aforesaid judgment and order that it has the duty of the employee or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedure for the resolution, settlement or prosecution of acts of sexual harassment by talking all steps required. For this purpose sexual harassment includes such unwelcome sexually determined behavior (weather directly or by implication) as:-
a. Physical contact and advance;
b. Demand or request for sexual favour, c. Sexually colored remarks;
d. Showing any pornography;
e. Any other unwelcome physical, verbal or non verbal conduct of sexual nature.
16. The attention also needs to be drawn to rule 3 (1)(iii) of the CCS (Conduct) Rules, 1964 which provides that every government servant shall at all times do nothing which is unbecoming of a government servant. Any act of sexual harassment of a women employee is definitely unbecoming of a government servant and amounts to misconduct. Appropriate disciplinary action should be initiated in such cases against the delinquent government servant in accordance with rules.
17. In the judgment and order dated 26.04.2004 in writ petition No.173-177/1999 (Medha Kotwal Lele and others vs. Union of India & Ors), the Honble Supreme Court has directed that the report of the Complaints Committee shall be deemed to be an inquiry report under the CCS (CC&A) Rules, 1965. Thereafter, the Disciplinary Authority will act on the report in accordance with the rules. Sub rule (2) of rule 14 of the CCs (CC&A) Rules, 1965 has accordingly been amended to provide that the complaints committee shall be deemed to be Inquiring Authority appointed by the Disciplinary Authority for the purposes of these rules by notification No.11012/5/2001-Esu (a) dated 01/07/2004 (SI. No.17 of Swamys Amiual, 2004) (GSR 225 dated 10th July, 2004.).
18. In compliance with the order dated 01.09.2009, the Appellate Authority, carefully considered all the points raised by the applicant in his original appeal dated 17.06.2006 as well as in additional appeal dated 24.09.2009 also the facts and circumstances of the case and rejected the appeal of the applicant vide a well worded, detailed and speaking order dated 14.12.2009. Original copy of the Appellate Authoritys order was forwarded to the applicant through this factory letter dated 16.12.2009.
19. It is humbly submitted that the orders dated 14.12.2009 and 23.05.2006 passed by the Appellate authority and the Disciplinary Authority passed against the applicant are well worded, reasoned and speaking and liable to be upheld by this court. The applicant is not entitled to any relief from this court and the aforementioned original application deserves to be dismissed.
20. We are unable to accept the contention raised by counsel for the applicant. After the completion of the alleged inquiry, the applicant was punished with the punishment of the compulsory retirement against which he filed statutory appeal which was rejected and against that rejection he also filed a Revision Petition, which was also rejected. During the pendency of his revision petition the applicant also preferred O.A. No. 1247 of 2006 (Ali Aala Rizvi vs. Union of India & Ors). The court setting aside the order passed by the Appellate Authority, and remanded the matter to the Appellate Authority to consider the grounds taken by the applicant in his appeal and the applicant was also directed to file additional grounds of appeal if he so desires.
21. In compliance of the order of this Court, the applicant also filed additional grounds of appeal and the Appellate Authority, decided the appeal by a detailed order. Now, the only contention of the applicant before us that while deciding the appeal again by the Appellate Authority, the Appellate Authority has failed to consider the grounds mentioned in the appeal as well as in the additional appeal filed by the applicant.
22. While going through the impugned order passed by the Appellate Authority, it is clear from the above said order that it has been passed in detailed and the appeal was rejected by a reasoned and speaking order considering all the grounds taken by the applicant in his memorandum of appeal and additional memorandum of appeal.
23. The contention of the applicant that Appellate Authority has failed to consider the ground taken by the applicant in the memorandum of appeal is not tenable and we find no sufficient grounds to interfere with the order passed by the Appellate Authority. Moreover, parting with the case, we would like to mention that the applicant again by way of grounds of appeal and additional appeal tried to tarnish the image of the complainant by involving her with another employee of this respondents. The applicant has vehemently challenged in the inquiry proceeding as well as in the appeal involvement of one P.K. Chatterji and also alleged that the complainant is also in connivance with the alleged Shri P.K. Chatterji but the applicant has failed to impleade the above said P.K. Chatterji as respondents.
24. It is also necessary to mention her that the cases of sexual harassment at the work place are increasing and in such cases so many times the concrete and solid evidence may not come due to certain reasons. However, the Apex Court and the High Court in this regard after considering all the aspect directed all the organization to constitute a Committee to monitor the cases and complaint of the sexual harassment. In the present case also a Committee recorded its finding regarding the sexual harassment of the complainant and after conducting an elaborate inquiry the applicant was punished with punishment of compulsory retirement. The appeal and revision also filed by the applicant were rejected by the higher authority. In this manner we do not find any good ground to interfere with the order passed by the Appellate Authority. The O.A. lacks merits and is accordingly, dismissed. No costs.
(Nita Chowdhury) (Justice Dinesh Gupta)
Member (A) Member (J)
Sushil
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