Kerala High Court
P J Antony vs Spices Board on 19 December, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 2ND DAY OF NOVEMBER 2017/ 11TH KARTHIKA, 1939
WP(C).No. 31798 of 2015 (Y)
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PETITIONER(S):
-------------
P J ANTONY
S/O.P.J.JOSEH (LATE), RETIRED ASSISTANT DIRECTOR
(DEVELOPMENTS) SPICES BOARD, RESIDING AT 7/929(7),
PALAPARAMBIL HOUSE, SANJAY NAGAR, SEKHARIPURAM POST,
PALAKKAD-678 010.
BY ADVS.SRI.KALEESWARAM RAJ
SRI.U.BALAGANGADHARAN
RESPONDENT(S):
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1. SPICES BOARD
REPRESENTED BY ITS SECRETARY, SUGANTHA BHAVAN, N.H.BYE
PASS, PB NO.2277, PALARIVATTOM P.O., ERNAKULAM-682 025.
2. THE CHAIRMAN
SPICES BOARD, SUGANTHA BHAVAN, N.H.BYE PASS, PB NO.2277,
PALARIVATTOM P.O., ERNAKULAM-682 025.
3. THE SECRETARY
SPICES BOARD, SUGANTHA BHAVAN, N.H.BYE PASS, PB NO.2277,
PALARIVATTOM P.O., ERNAKULAM-682 025.
4. THE DIRECTOR (DEVELOPMENT)
SPICES BOARD, SUGANTHA BHAVAN, N.H.BYE PASS, PB NO.2277,
PALARIVATTOM P.O., ERNAKULAM-682 025.
5. S.SIDDARAMAPPA
THE DIRECTOR (DEVELOPMENT),SPICES BOARD, SUGANTHA
BHAVAN, N.H.BYE PASS, PB NO.2277, PALARIVATTOM P.O.,
ERNAKULAM-682 025.
6. SMITHA BHASI
FIELD OFFICER, SPICES BOARD, ERNAKULAM-682 025.
7. THE SECRETARY
MINISTRY OF COMMERCE AND INDUSTRY, DEPARTMENT OF
COMMERCE, NEW DELHI-110 001.
R7 BY ADV. SMT.MAHESWARY.G., CGC
R1 -R 4 BY ADV. SMT.K.RADHAMANI AMMA, SC, SPICES BOARD
R1 -R 4 BY ADV. SRI.ANTONY MUKKATH, SC, SPICES BOARD
R1-R4 BY ADV. SRI.O.V.RADHAKRISHNAN (SR.)
R7 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
02-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 31798 of 2015 (Y)
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APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
EXT.P1.TRUE COPY OF THE MEMO DATED 19/12/2011.
EXT.P2.TRUE COPY OF THE MEMO DATED 20/12/2011
EXT.P3.TRUE COPY OF THE MEMO DATED 21/2/2012
EXT.P4.TRUE COPY OF THE MEMO DATED 28/2/2012
EXT.P5.TRUE COPY OF THE MEMO DATED 1/3/2012
EXT.P6.TRUE COPY OF THE MEMO DATED 6/3/2012
EXT.P7.TRUE COPY OF THE MEMO DATED 8/3/2012
EXT.P8.TRUE COPY OF THE MEMO DATED 16/3/2012
EXT.P9.TRUE COPY OF THE MEMO DATED 23/3/2012
EXT.P10.TRUE COPY OF THE MEMO DATED 9/4/2012
EXT.P11.TRUE COPY OF THE MEMO DATED 23/1/2015
EXT.P12.TRUE COPY OF THE MEMO DATED 30/1/2012
EXT.P13.TRUE COPY OF THE INTERIM ORDER DATED 12/4/2012
IN WPC NO.2903/2012.
EXT.P14.TRUE COPY OF THE ORDER DATED 16/4/2012.
EXT.P15.TRUE COPY OF THE REPORT DATED 27/1/2012.
EXT.P16.TRUE COPY OF THE 2ND RESPORT DATED 21/2/2012.
EXT.P17.TRUE COPY OF THE REPORT DATED 2/4/2012.
EXT.P18.TRUE COPY OF THE CHARGE MEMO DATED 5/7/2012.
EXT.P19.TRUE COPY OF THE EXPLANATION OFFERED BY THE
PERTITIONER DATED 12/7/2012.
EXT.P20.TRUE COPY OF THE RELEVANT PAGES OF THE DAILY
ORDER SHEET DATED 19/9/2012.
EXT.P21.TRUE COPY OF THE RELEVANT PAGES OF THE DAILY
ORDER SHEET DATED 25/10/2012.
EXT.P22.TRUE COPY OF THE RELEVANT PAGES OF THE DAILY
ORDER SHEET DATED 23/10/2013.
EXT.P23.TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER DATED 5/12/2013.
EXT.P24.TRUE COPY OF THE RELEVANT PAGES OF THE NOTE
DATED 11/12/2013.
EXT.P25.TRUE COPY OF THE SAMPLE LETTER DATED
6/11/2012.
WP(C).No. 31798 of 2015 (Y)
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-2-
EXT.P26.TRUE COPY OF THE LETTER DATED 26/6/2012.
EXT.P27.TRUE COPY OF THE RELEVANT PAGES OF THE DAILY
ORDER SHEET DATED 8/2/2013.
EXT.P28.TRUE COPY OF THE REPORT TOGETHER WITH LETTER
DATED 25/6/2014 WITH FULL TEXT OF ENQUIRY REPORT
EXT.P29.TRUE COPY OF THE EXPLANATION SUBMITTED BY THE
PETITIONER TO THE ENQUIRY REPORT DATED 17/7/2014.
EXT.P30.TRUE COPY OF THE ORDER DATED 11/9/2014.
EXT.P31.TRUE COPY OF THE APPEAL MEMORANDUM DATED
16/10/2014.
EXT.P32.TRUE COPY OF THE APPELLANT ORDER DATED
26/5/2015.
EXT.P33.TRUE COPY OF THE OMS ISSUED BY THE DP & T
DATED 21/7/2009.
EXT.P34.TRUE COPY OF THE RELEVANT PAGES OF THE DAILY
ORDER SHEET DATED 7/8/2009.
EXT.P35.TRUE COPY OF THE LETTER SENT BY THE FATHER OF
NEETHU SUDARSANAN.
RESPONDENT(S)' EXHIBITS
-----------------------:
EXHIBIT R1(a): COPY OF SPICES BOARD (CLASSIFICATION, CONTROL AND
APPEAL) REGULATIONS, 1992 PUBLISHED IN THE GAZETTE OF INDIA,
EXTRAORDINARY, DATED 21.4.1992.
EXHIBIT R1(b): COPY OF CHIEF EXAMINATION OF THE WITNESS, KUM.SMITHA
BHASI, SPICES BOARD, KATTAPPANA DATED 6.3.2013.
EXHIBIT R1(c): COPYOF CROSS-EXAMINATION OF THE WITNESS, KUM.SMITHA
BHASI, SPICES BOARD, KATTAPPANA DATED 14.3.2013.
EXHIBIT R1(d): COPY OF MEMORANDUM NO.ADM/TRA/03/10/1061`4 DATED
21.2.2012.
EXHIBIT R1(e): COPY OF COVERING LETTER NO.AD/KTP/3/11/LF/574 DATED
1.12.2011 OF THE PETITIONER.
EXHIBIT R1(f): COPY OF NOTICE NO.DEV/ADMN/COM/3/10/1692 DATED
16.1.2012 SERVED ON THE PETITOINER BY THE 5TH RESPONDENT.
EXHIBIT R1(g): COPY OF OM OM NO.11013/10/97-ESTT(A) DATED 13.2.1998.
EXHIBIT R1(h): COPY OF DEPOSITION OF WITNESS DR.K.MARY MATHEW DATED
7.11.2012.
EXHIBIT R1(i): COPY OF CROSS-EXAMINATION OF FIRST WITNESS DR.K.MARY
MATHEW STARTING ON 26.11.2012 AND CONTINUING TILL 11.2.2013.
EXHIBIT R1(j): COPY OF RE-EXAMINATION OF THE FIRST WITNESS, DR.K.MARY
MATHEW DATED 13.2.2013.
EXHIBIT R1(k): COPY OF RESPONSE LETTER FO.VIG/COM/02/2011/3917 DATED
5.11.2012 ISSUED BY THE 3RD RESPONDENT SECRETARY.
EXHIBIT R1(l): COPY OF ORDER NO.VIG:COM:02:2011 DATED 13.3.2012 OF
THE SECRETARY OF THE SPICES BOARD.
EXHIBIT R1(m): COPY OF NOTE DATED 16.3.2012 OF THE USHA M.R. TO THE
3RD RESPONDENT.
EXHIBIT R1(n)(I): COPY OF LETTER DATED 29.3.12 BY THE PETITIONER
BEFORE THE PRELIMINARY INQUIRY COMMITTEE.
EXHIBIT R1(n)(ii): COPY OF LETTER DATED 29.3.12 BY THE PETITIONER
BEFORE THE PRELIMINARY INQUIRY COMMITTEE.
EXHIBIT R1(n)(iii): COPY OF LETTER DATED 29.3.12 BY THE PETITIOENR
BEFORE OTHE PRELIMINARY INQUIRY COMMITTEE.
EXHIBIT R1(n)(iv): COPY OF LETTER DATED 29.3.12 BY THE PETITIOENR
BEFORE OTHE PRELIMINARY INQUIRY COMMITTEE.
EXHIBIT R1(n)(v): COPY OF LETTER DATED 29.3.12 BY THE PETITIOENR
BEFORE OTHE PRELIMINARY INQUIRY COMMITTEE.
EXHIBIT R1(o): COPY OF LETTER DATED DIR(M)/ENQUIRY/2013-HO DATED
27.11.2013 SERVED BY THE INQUIRY OFFICER TO THE PETITIONER.
EXHIBIT R1(p): COPY OF LETTER DATED 18.1.2013 ADDRESSED TO THE
INQUIRY OFFICER.
EXHIBIT R1(q): COPY OF DEPOSITION OF 2ND WITNESS SMT.SOOSAMMA MATHEW
DATED 13.2.2013.
EXHIBIT R1(r): COPY OF CHIEF EXAMINATION OF OTHE WITNESS Ms.ANUMOL,
EX OTA DATED 27.2.2013.
EXHIBIT R1(s): COPY OF FORM 1 RULE 14 APPLICATION FOR LEAVE OR FOR
EXTENSION OF LEAVE.
EXHIBIT R1(t): COPY OF M.H.A.O.M.NO.25/54/58-ESTS, DATED 12.4.1954.
EXHIBIT R1(u): COPY OF LETTER DATED 13.10.2014 OF THE PETITIONER TO
THE SECRETARY SPICES BOARD.
EXHIBIT R1(v): COPY OF PENSION PAYMENT ORDER NO.I(18)84/D.ADMN/2892
DATED 22.1.2015 OF THE SECRETARY SPICES BOARD.
EXHIBIT R1(w): COPY OF REPRESENTATION DATED 29.5.2015 OF THE
PETITIONEWR TO THE DY.DIRECTOR (ADMN) SPICES BOARD.
EXHIBIT R1(x): COPY OF ORDER NO.1(18)84/D.ADMN/810 DATED 22.6.2015 OF
THE SECRETARY, SPICES BOARD.
EXHIBIT R1(y): COPY OF E-FILE NOTINGS FILE NO.ACCT-PEN/ORD/0007/2014-
ACCOUNTS.
EXHIBIT R1(z): COPY OF PAYMENT VOUCHER NO.1007527 DATED 25.6.2015 OF
THE SPICES BOARD.
/TRUE COPY/
PS TO JUDGE
ANU SIVARAMAN, J.
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W.P(C).No. 31798 of 2015
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Dated this the 2nd day of November, 2017
JUDGMENT
The prayers in this writ petition are as follows:
"i. to issue writ in the nature of certiorari to quash Exhibit P18 charge memo, Exhibit P28 Enquiry Report, Exhibit P30 penalty order and Exhibit P32 appellate order as illegal, unjust and unsustainable.
ii. to issue writ of mandamus directing the second respondent to reinstate the petitioner in service as Assistant Director with effect from the date of Exhibit P31 with all the consequential benefits including the arrears of pay and allowances, grades etc. iii.to issue a writ of mandamus directing the second respondent to regularize the period of suspension as duty for all purposes and to disburse pay and allowances for the period of suspension and iv.to declare that the petitioner is entitled to be reinstated in service as the Assistant Director with all the consequential benefits and is entitled to continue in service till he attains superannuation.
v. To declare that the petitioner is not guilty of charges and he is not liable to be imposed with any penalty and that he is entitled to be exonerated from all charges."
WP(C).31798/15 2
2. Heard learned counsel for the petitioner and the learned Senior Counsel appearing for the respondents.
3. The issue involved in this case is with regard to the legality of the disciplinary proceedings initiated against the petitioner and the penalty of compulsory retirement imposed on him pursuant thereto. The specific case of the petitioner is that on the strength of uncorroborated and unestablished oral statements of a woman officer, disciplinary proceedings were initiated on the ground of sexual harassment in the workplace. Learned counsel for the petitioner contends that the entire procedure including the lack of clear charges supported by specific statement of allegations, non furnishing of copies of materials relied on in the enquiry, non availability of a written complaint made by the concerned lady officer and lack of proper opportunity to defend himself in the enquiry as well as the non convening of a properly constituted committee for considering the allegations raised vitiated the enquiry proceedings and consequently the orders issued therein. It is therefore contended that the imposition penalties amounting to removal from service on the basis of unsubstantiated allegations has resulted in violating the fundamental rights guaranteed to the petitioner under the Constitution of India. WP(C).31798/15 3
4. In the counter affidavit filed on behalf of the respondents a preliminary objection has been raised to the effect that the petitioner had accepted all the service benefits flowing from the order of compulsory retirement imposed on him by way of penalty. He had submitted representations requesting forwarding of pension papers at the earliest without reserving his right to challenge the order of compulsory retirement. Accordingly, pension payment order dated 22.1.2015 was issued. Thereafter, the petitioner submitted representation on 29.5.2015 seeking sanction of computation of pension and the same was also sanctioned and disbursed to him. It is submitted that he had therefore made a conscious choice to accept the compulsory retirement imposed on him and had sought all monetary benefits due on that count. Relying on the decisions of the Apex Court in U.P.Awas Evam Vikas Parishad v. Rajendra Bahadur Srivastava [1995 Supp (4) SCC 76], State of Punjab v. Krishan Niwas [(1997) 9 SCC 31] and Anil Bajaj (Dr) v. Postgraduate Institute of Medical Education and Research [(2002) 2 SCC 240], it is contended that once the punishment is accepted and payment received without reservations, the petitioner is estopped from making any further contentions as regards the punishment WP(C).31798/15 4 imposed. However, learned counsel for the petitioner contends that the issue involves violation of fundamental rights guaranteed to the petitioner. The learned counsel brought to my notice the decisions of the Apex Court in Nar Singh Pal v.
Union of India and Others [(2003) 3 SCC 588], N.S.Balasubramanian v. Food Corporation [2006(2) KLJ 572] and Saurabh Jain v. State of Kerala [2011(1) KLT 888 (FB)]. In view of the arguments raised in that regard, I proceeded to hear the writ petition on merits.
5. It is the case of the writ petitioner that the 6th respondent had been posted as field officer in a retirement vacancy in the Kattappana Office of the 1st respondent Board. Pursuant to the transfer, she was reluctant to work in the high ranges and it is submitted that she joined the transferred station only after a great deal of persuasion on 29.8.2011. It is stated that she was impertinent and careless in discharging her duties and the petitioner had been issuing oral instructions and thereafter, memos and warnings against the 6th respondent. Exhibits P1 to P5 are copies of some of the memos issued by the petitioner to the 6th respondent. When the memos did not yield results, the petitioner had addressed the Deputy Director (Development) by Exhibit P6 with regard to the posting of the WP(C).31798/15 5 6th respondent to the Head Office for other duties. Exhibits P7 to P10 are also communications complaining of the conduct of the 6th respondent. Thereafter, with regard to a request submitted by the 6th respondent for study leave for research purpose, the petitioner has produced Exhibit P11 communication dated 23.1.2015 sent by him and addressed confidentially to the Directors of the Board stating that there is inconsistency in her attendance and that she is uncourteous and "her integrity to the Board is little doubtful". Thereafter, the petitioner was transferred and posted as Assistant Director to the Zonal Office, Arunachal Pradesh, which order was stayed by this Court by interim order dated 12.4.2012 in W.P(C).2903 of 2012. On 16.4.2012, by Exhibit P14 proceedings, the petitioner was placed under suspension in contemplation of the disciplinary proceedings. It is submitted that it was on the basis of Exhibits P15 and P16 submissions made by the Women Welfare Officer that she had received oral complaints from lady officers with regard to the conduct of the petitioner that the action had been initiated against the petitioner. It is stated that a joint preliminary enquiry was conducted into the complaints of the female employees against the petitioner. Exhibit P17 is the report of the preliminary enquiry. Exhibit P17 refers to an WP(C).31798/15 6 oral complaint made by the 6th respondent about the petitioner's verbal abuse, unwelcome behaviour and discriminatory attitude and records that the 6th respondent was reluctant to give a written complaint against the petitioner. The observation made in Exhibit P11 about the integrity of the 6th respondent was also mentioned in the statement given by the Women Welfare Officer. Complaints made by one Neethu Sudarsan and the discussion with other members of the sexual harassment complaint committee are also referred to. The petitioner was also summoned in the preliminary enquiry and he denied the allegations. He also submitted a written version of the statement. The letters forwarded by the petitioner which were allegedly issued by other women employees, who had worked in the same office, were also considered by the Committee. The Committee found that in view of the repeated complaints raised against the petitioner, the issue has to be enquired into. Thereafter, Exhibit P18 memorandum with articles of charges was served on the petitioner calling upon him to submit his explanations to the same within ten days. The articles of charges framed against the petitioner were as follows:
WP(C).31798/15 7
"Article I That the said Sri.PJ Antony, while functioning as Assistant Director (Development), at Kattappana Development Office of the Board allegedly harassed his female subordinate staff by resorting to verbal abuse, unwelcome behaviour and discriminatory attitude, insulting remarks, using foul language and even made verbal and non verbal conduct and advances of sexual nature towards them. By his above acts towards his subordinate female staff, Sri.PJ Antony, had indulged in acts amounting to sexual harassment of female employees at work place and had conducted himself in a manner unbecoming of an employee of the Board, thereby violating rules 3-C(1) and 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964, applicable to employees of the Board.
Article II That the said Sri.PJ Antony, has often been found applying for Earned Leave, LTC and other kinds of leave, without mentioning his actual leave address with ulterior motives. Each and every employee of the Board is supposed to inform his employer his proper address during leave period for communication, for contacting etc., in exigency.
By his above act, Sri.PJ Antony, has conducted himself in a manner unbecoming of an employee of the Board, thereby violating rule 3(1)(i) & 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964, applicable to employees of the Board. WP(C).31798/15 8
Article III That the said Sri.PJ Antony, after reporting at the specified Headquarters during suspension period, i.e. Head Office of the Board i.e. Cochin without the permission or knowledge of any office staff, unauthorisedly took photocopy of the attendance register of the Development Wing of the Board with ulterior motives.
By his above act, Sri.PJ Antony, has conducted himself in a manner unbecoming of an employee of the Board, thereby violating rules 3(1)(i) & 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964, applicable to employees of the Board."
6. The charges were supported by statement of allegations as well. It is stated in the statement that the female employees including the 6th respondent had refused to make written complaints against the petitioner and that the Women Welfare Officer had made the submission before the 1st respondent Board on being convinced that there is some substance in the complaints made by the junior woman officers. Copies of the submissions made by the Women Welfare Officer and the preliminary enquiry report were served on the petitioner. Several officers of the Board were cited as witnesses.
WP(C).31798/15 9
7. The petitioner submitted Exhibit P19 reply denying the allegations and contended that the complaint raised by the 6th respondent was only a measure of retaliation for the warning issued to her regarding instances of misconduct, carelessness, irresponsibility etc. It is pointed out that the true nature of the charge is not clear from the articles of charges and the statement of imputation. The other two allegations were also denied.
8. In the preliminary hearing held on 2.4.2012 also, the petitioner contended that the allegations are vague in nature and specific instances of the incidents are required for him to submit his explanations factually as against the same. It was also stated that the names of the female employees, who are cited as witnesses, should be specifically provided. The petitioner's first objection was overruled and accepting his second objection, the names of all the lady employees, who were working in the office, were provided as witnesses. The petitioner also contended that the original complainant should be examined first before examining the Women Welfare Officer. This claim was also rejected. The request made by the petitioner for examination of the driver of the official jeep and for a spot visit to the site of the inspection conducted by him WP(C).31798/15 10 along with the 6th respondent was rejected. It is submitted that the petitioner was denied of a chance of properly defending his case by the rejection of his request for re-examination of the witnesses.
9. Thereafter, Exhibit P28 report was submitted by the enquiry officer. Exhibit P27 communication was thereafter issued to the petitioner with copy of the enquiry report seeking his objections against the findings of the enquiry officer. The petitioner submitted Exhibit P29 explanation, again pointing out that the memo of charges were vague, the specific allegations against him were not made known to him and it was only when the 6th respondent was examined as SW8 that the true nature of allegations as against him were made known to him. It is stated that even though the enquiry officer was changed as a result of the complaint preferred by the petitioner, the request made for starting the enquiry from the beginning was rejected. The enquiry officer did not supply the petitioner with signed copies of the depositions on the same date and in some cases had given such copies only after one month. It is stated that the lack of written complaint by the 6th respondent and the lack of clarity in framing the articles of charges and the statement of implications had caused serious WP(C).31798/15 11 prejudice to the petitioner and he was unable to defend that case properly. His complaint was that all the witnesses cited by the management had not been examined. Contentions were raised with regard to the merits of the allegations as well. Imputations were directed against the 6th respondent and the Director (Development) of the Board as well. He reiterated his contention that the Director (Development) had stayed in a private hotel with one Senior Field Officer N.N.Usman. The 6th respondent was called to the place of his stay and was asked to accompany him along with the Field Officer, Nedungandam. It is stated that the Director (Development) invited her to Kochi and showed her the remarks alleged to have been made by the petitioner on the leave application and then persuaded her to complain to the Women Welfare Officer and she meekly complied. It is stated that these facts point to the unholy link between the 6th respondent and the Development Officer.
10. Considering the explanation preferred, the disciplinary authority came to the conclusion that the objections filed by the petitioner himself as well as the stand taken by him in the enquiry proceedings would clearly show that he admitted the commission of the acts alleged against him by the 6th respondent. It is stated that the repeated oral and written WP(C).31798/15 12 admonitions as against the 6th respondent as well as the recording in a confidential communication that the 6th respondent's integrity to the Board was little doubtful as also the unsolicited and unwelcome advances made by the petitioner to the lady officer were matters of record which had been clearly admitted by the petitioner himself in all the objections and statements given by him in connection with the disciplinary enquiry. Taking note of the misconduct alleged against him as proven in the enquiry but taking into consideration the length of service put in by the petitioner, a lenient view was taken in the matter of punishment of award and the petitioner was implicated a penalty of compulsory retirement with all consequential monetary benefits.
11. Petitioner thereafter preferred Exhibit P31 appeal before the Board again pointing out the lack of clarity in the memo of charges and statement of allegations as also the irregularities in the conduct of the enquiry. By Exhibit P32 order dated 26.5.2015, the appeal was considered and the Board came to the conclusion that there is no irregularity in the disciplinary proceedings and there is no violation of principles of natural justice was found. It was found that the evidence adduced substantiated the charges and the imposition of WP(C).31798/15 13 punishment of compulsory retirement with full benefits was perfectly justifiable.
12. Learned counsel for the petitioner relies on the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (for short, '2013 Act') as well as the office memorandum issued in pursuance of the directions issued in the Vishaka v. State of Rajasthan [(1997)6 SCC 241] to contend that the procedure prescribed for the conduct of an enquiry with regard to a case of sexual harassment in the work place had been observed only in its breach in the petitioner's case. It is stated that the father of the 2nd lady, whose name is made mention of in the initial submission made by the Women Welfare Officer against the petitioner, had submitted Exhibit P35 retraction before the Secretary of the Spices Board stating that his daughter had no complaint against the petitioner.
13. Learned counsel for the petitioner would contend that the vagueness of the charges which was pointed out at the first possible instance in Exhibit P19 objection, the lack of a written complaint which was not rectified even at the stage of the enquiry held against the petitioner, the lack of a properly constituted committee with regard to sexual harassment as WP(C).31798/15 14 provided in the Vishaka's case (supra) and the refusal to call direct witnesses who were available as well as the bias on the part of the enquiry officer which is clear from the proceedings of the enquiry vitiate the entire proceedings. It is stated that the real charges against the petitioner were in the nature of the evidence adduced by SW8, the 6th respondent in the writ petition. It is stated that her evidence was not corroborated and the enquiry officer had gone out of her way to supplement her evidence so as to come to a conclusion that the allegations raised by the 6th respondent against the petitioner amounted to sexual harassment in the work place.
14. Reliance is placed on the decisions of the Apex Court in Sawal Singh v. State of Rajasthan [1986 KHC 839], M.V.Bijlani v. Union of India and Others [(2006) 5 SCC 88], Anil Gilurker v. Bilaspur Raipur Kshetriya Gramin Bank and Another [(2011) 14 SCC 379] to contend that where the charges are vague, the enquiry itself would stand vitiated. Relying on the decisions of the Apex Court in S.Parthasarathi v. State of A.P. [1974 KHC 581] and Ranjit Thakur v. Union of India and Others [1987 KHC 1117], it is argued that bias in the conduct of the disciplinary proceedings results in violation of fundamental rights guaranteed to the delinquent under WP(C).31798/15 15 Article 14 of the Constitution of India and the resultant order would therefore be a non est in the eye of law. It is contended that the clear case set up by the petitioner that the complaint made against him was in retaliation for the attempts made to impose discipline in the establishment had not been considered by any of the authorities in spite of materials produced by him. Relying on the decisions of the Apex Court in Vishaka's case (supra), Pandurang Sitaram Bhagwat v. State [2005 KHC 1515] and Additional District and Sessions Judge 'X' v. Registrar General, High Court of Madhya Pradesh and Others [(2015) 4 SCC 91], it is contended that the issue of oversensitivity of the woman officer and the discrepancies as to the place and time of the occurrences were matters which were raised in the enquiry but never considered.
15. The learned Senior Counsel appearing for the respondents would contend that the lack of written complaint by an officer subjected to harassment cannot be pleaded by the delinquent officer as a ground to escape the consequences of his illegal acts and conduct especially where he is put on proper notice and it is proved in a duly constituted disciplinary enquiry that he had committed the sexual harassment as alleged against him. It is stated that the Apex Court has held WP(C).31798/15 16 that a disciplinary enquiry cannot be equated to a proceeding before a Court of Law and that the standard of proof required is also evidently different. The decisions of the Apex Court in Union of India v. Sardar Bahadur [{1972)4 SCC 618], B.C.Chaturvedi v. Union of India and Others [(1995)6 SCC 749], State of Tamil Nadu v. S.Subramaniam [AIR 1996 SC 1232] and other decisions, it is contended that it is a settled position that the scope of judicial review in disciplinary matters is limited to the procedural aspects. It is stated that the lack of a proper committee and the compliance with the due procedure are matters for the 6th respondent to complain of, in case she has any grievance as against the penalty imposed on the petitioner. It is stated that even after finding the petitioner guilty as charged, only the relatively mild punishment of compulsory retirement had been imposed on him and the petitioner had made specific request for and had received all the monetary benefits due on account of such compulsory retirement. It is stated that the procedure prescribed in the 2013 Act does not apply in the petitioner's case, since the memo of charges had been issued before the enactment of the said statute. Even going by the 2013 Act, the definition of sexual harassment is an inclusive definition and "any other WP(C).31798/15 17 unwelcome physical, verbal or non verbal conduct of sexual nature" includes the acts alleged against the petitioner as well. It is stated that the perception of the person who is subjected to the harassment is of prime importance in a case of this nature. The learned Senior Counsel also relied on the decision reported in Additional District and Sessions Judge 'X' v. Registrar General, High Court of Madhya Pradesh and Others [(2015) 4 SCC 91]. From Exhibit P19 reply submitted by the petitioner itself it is clearly brought out that the petitioner was perfectly aware of the allegations raised against him. The decisions reported in A.R.S.Choudhury v. Union of India [AIR 1956 Cal. 662] and Rana Pratap Singh v. Vice Chancellor, Benares Hindu University, Varanasi [AIR 1960 All 579] are relied on to contend that the test is as to whether the charge conveys to the delinquent, the exact nature of the alleged offence, in a way that would enable him to meet the charge. Relying on the decision of the Apex Court in Dy.Inspector General of Police v. K.S.Swaminathan [(1996)11 SCC 498], it is contended that examining the correctness of charges is beyond the scope of judicial review. Since the petitioner did not have any defence on merits, he had made complaint against the first enquiry officer appointed on WP(C).31798/15 18 the ground that she was biased. Subsequently, the enquiry officer was changed and a person who was not even an employee of the Board had been appointed as enquiry officer. During the enquiry, no complaints had been raised with regard to the recording of the depositions. It is stated that the 6th respondent had specifically stated in her complaint as to why no written complaint had been preferred by her against the petitioner. It is stated that while considering the validity or otherwise of a disciplinary proceedings, anything which is transpired before the issuance of the charge sheet has no relevance and the judicial review of this Court is to be confined to the legality or otherwise of the enquiry conducted and the orders issued pursuant thereto.
16. I have considered the contentions advanced at considerable length. I have also perused the materials including the enquiry report produced in the case. From a comprehensive reading of the charge memo and the petitioner's reply thereto as also the enquiry report and Exhibit P29 reply, I am of the opinion that the claim raised by the petitioner that he was not aware of the true nature of the allegations raised against him is a technical objection, which is not factually sustainable. The petitioner admits to verbal WP(C).31798/15 19 admonitions of the 6th respondent and produces the documents which reveal his written admonitions. It is pertinent to note that Exhibit P11 confidential document is also produced by the petitioner himself before this Court. He does not deny the occurrences of unwelcome conduct complained of by the 6th respondent with regard to occupying the front seat in the official transport and his unsavory comments made in respect to the same. His contentions are only with regard to the nature of his conduct and his intentions behind the same. Having gone through the materials on record, the contentions raised by the petitioner with regard to the procedural irregularities in the conduct of the enquiry also do not appear to be sustained. Exhibit P29 reply submitted by him to the findings in the enquiry report also contains unfounded allegations touching upon the character of the 6th respondent which reveals his attitude and perspective in the matter. In the circumstances, the basic facts which formed the foundation of the allegations as against him are never disputed by him at all. In view of the said factual circumstances of this case, and in view of the fact that his statement had been recorded in the preliminary enquiry also at which point of time he was put on notice of the allegations raised against him, the contentions raised with WP(C).31798/15 20 regard to lack of clarity or vagueness of charges cannot be a ground to find that the disciplinary proceedings conducted against him is vitiated in any manner.
17. The petitioner, as the charged officer, had been given all opportunity to defend his case. He did not chose to summon any witnesses to support his version. In the said circumstances, his attempt to find fault with the enquiry officer and the presenting officer for not examining witnesses, who were likely to support his case, cannot be countenanced. The petitioner has produced no material to show that he had submitted a witness list or called witnesses to support him. If persons cited by him were unwilling to give evidence in support of his case, that cannot be raised as a ground to state that the enquiry officer was biased.
18. It is to be borne in mind that the challenge in the writ petition is to the orders passed in a disciplinary proceedings instituted in terms of the Rules in force. The non convening of the committee in consonance with the Vishaka's case (supra) is not a matter which vitiates the impugned proceedings, since the petitioner was inflicted with the punishment of compulsory retirement only after following the procedures prescribed in a properly constituted disciplinary enquiry. An ultimate request WP(C).31798/15 21 had been made by learned counsel for the petitioner for converting the order of compulsory retirement as one of voluntary retirement so that the petitioner would not be inflicted with the stigma of being an employee terminated from service. The learned counsel placed reliance on Jai Bhagwan v. Commr. of Police and Others [2013 KHC 4521] and Nicholas Piramal India Ltd. v. Harisingh [2015 KHC 4341] in support of the said request. I am not inclined to accept the said contention for the reason that voluntary retirement is not a penalty which can be imposed on an employee as a consequence of a disciplinary proceedings. Even if this Court were inclined to consider the question of proportionality of punishment imposed by the disciplinary authority, the punishment imposed would have to be shockingly disproportionate to the proved charges and could only be substituted by another punishment of a lesser degree and not by an order of voluntary retirement which could not be imposed as a penalty. Since I am unable to come to any finding as to the shocking disproportionality of the punishment imposed, I am not persuaded to interfere with the punishment imposed.
In the facts and circumstances of this case, I do not think that any ground has been made out for interference with the WP(C).31798/15 22 orders of the disciplinary authority or the appellate authority in exercise of the powers of judicial review conferred on this Court under Article 226 of the Constitution of India. The writ petition fails and is accordingly dismissed.
ANU SIVARAMAN JUDGE vgs