Central Administrative Tribunal - Mumbai
Vialas V Pawar vs Kvs on 5 October, 2023
OA No, 770/2023.
CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAI BENCH, MUMBAL.
ORIGINAL APPLICATION No. 770 of 2023.
Order Reserved on 15" September, 2023.
Order Pronounced oneSaCictober, 2023 Hon'ble Justice Shri. M.G. Sewlikar, Member (J) Hon'ble Dr. Bhagwan Sahai, Member (A) Shri Vilas V. Pawar, Age 55 years, working as PGT (Physics), K. ¥ No. 2, AFS, Pune 411032, Residing at : Flat Na, 607, Ganga Osian Apartment, Near Rajas Society, Katraj, Pune 411046, ~Applcant (Mr, V.A. Nagrani, Advocate) bo YERSUS Union of India, through The Commissioner, Kendriya Vidyalaya Sangathan (Under Ministry of HRD), HEAD QUARTERA, Shaheed Jeet Singh Marg, Institutional Area, Katw. ariya Sarai, New Delhi- 110016.
The Deputy Commissioner, Kendriya Vidy alaya Sangathan (Under Ministry of HRD), Regional ONice, LIT. Campus, Powai, Mumbai-400076,.
The Assistant Commissioner, Kendriya Vidyalaya Sangathan (Under Ministry of HRD), Regional Office, LIT Campus, Powai, Mumbai-400076.
The Principal, Kendriya Vidyalaya No. 2, AFS Pune- A{1032. .
-~Respondents bad GA. No. 77O/2025.
(Dr. VS. Masurkar, Advocate) Per : Hon' ble Justice Shri. M.G. Sewlikar, Member GD With the consent of the parties, heard finally at the interim stage.
Li. By this OA the applicant is seeking quashing and setting aside of the " ae = fe cas chargesheet dated 17" Aupust, 2022, and letter dated 10° October, 2022 and order of Dy. Commissioner, KVS, Mumbai dated 21° Angust, 2023 rejecting his representation.
12. Facts in nutshell are that the applicant was initially appointed as Post Graduate Teacher, Physics (PGT for short) at K.V. Tibri Cantt., Gurdaspur, Punjab. Currently he is posted at K.V. No. 2, AFS, South Deviali. On 4" July, 2019 he was given officiating charge of Principal. A TGT (Maths) teacher (to conceal her identity she is referred to as Smt. "X") filed a complaint of sexual harassment against the applicant. On the date of the complaint, the applicant was not holding the officiating charge of Prin- cipal as regular Principal had taken over the charge. Therefore, the said complaint was forwarded to regular Principal. This complaint was directly forwarded by the Principal to the Regional Office without calling for any explanation from the applicant. On 15" July, 2019 Smt. 'X? filed FIR against the applicant by virtue of which the applicant came to be arrested and on the same day he was released on bail.
1.3. On 16" October, 2019, the applicant received a letter intimating him es DA. No. 770/203.
that a summary inquiry by Internal Complaints Committee was fixed in connection with the F.LR filed by Smt. "X' on 18" October, 2019. The applicant requested the Internal Complaint Committee (ICC) not to proceed with the inquiry till the matter is decided by the High Court and aiso by the Commissioner of KVS, HO, New Delhi. Despite this, the inquiry was conducted in absence of the applicant. Qn 17° August, 2022, he was served with the memorandum of chargesheet alleging sexual ha-
rassment of Smt. "X' on 06° September, 2022 he submitted his reply.
i4, {it is further alleged that the applicant had filed OA No. 8760/2022, which was disposed of by this bench of the Tribunal granting liberty to make a representation before the competent authority and the competent authority was directed to take decision on the said representation within 8 weeks of the filing of the representation by the applicant. Accordingly, the applicant made representation before the ICC which came to be rejected on 22" August, 2023. The applicant is challenging the chargesheet dated 17"
August, 2022, order dated 10% October, 2022 and order dated 21° August, 2023, whereby his representation was rejected 1.5. it is contended by the applicant that the Inquiry was conducted in his absences. He was not in a positien to attend the inquiry because of his health issues. Tt is his contention that date of inquiry was 18" October, E29 2022 and notice was served on him on 16" Gctober, 2022, He had sought time Out that was not given and the inquiry was completed ex-parte. He OLA. No. 7ro/2023, contended that the chargesheet is filed by ignoring the provisions of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred as The Act).
1.6. We have heard Mr. V.A. Nagrani, leamed counsel for the applicant and Dr. VS. Masurkar, learned counsel for the respondents.
L7. Mr, VA. Nagrani submitted that as per guidelines, the inguiry is to be completed within 9Q days from the date of filing of the complaint. However, it has not been followed. In the case at hand the complaint was lodged on 4" July, 2019, so the inquiry ought to have been completed within 90 days ie. before 04" October, 2019, However, notice itself was served on 16" October, 2019 and the date fixed for inquiry was 18% October, 2019, The applicant was totally unaware of the nature of inquiry in respect of which the notice was issued to him. At that time, he was stay- ing 24 kilometers away from the workplace. Because of the distance and his health issues he was not in a position to attend the inquiry. On 18% October, 2019, he addressed a letter to the Principal informing him that judicial proceeding arising out of FIR filed by Smt. "X' was pending before district court and till its decision, inquiry may not be proceeded with. However, his request was not considered. He submitted that the respondents. completed the inquiry ex-parte. Statements were recorded of various teachers! students. Findings were recorded but copy of the findings was not given to the applicant. It was incumbent on the respondents to GLA. No. 77/2023.
furnish copy of the findings to the applicant in terms of proviso (2) to section 11 of the Act. Therefore, the provisions of section [1 of The Act have not been followed. Without giving him the copy of the findings, directly chargesheet was served on the applicant. He submitted that this clearly shows that provisions of section 1] and 13 of the Act have been violated. He further submitted that as per guidelines, notice of 7 days ought io have been served on the applicant. However, in the case at hand no notice of 7 days was served on him and chargesheet came to be filed after a period of 3 years of the filing of the complaint. The principles of natural justice have been violated and, therefore, the chargesheet needs to be quashed.
1.8. De VS. Masurkar stbmnitted that the Act provides that notice has ta be served on the applicant within a period of 7 working days and the inquiry shall be completed within a period of 90 days of the lodging of the complaint. The inquiry conducted by the respondents was a preliminary inquiry and thereafter chargesheet has been served on the applicant. The ° applicant was issued notice on 16 October, 2019 to remain present on the date of inquiry ic. 18° Oetober, 2019 but he did not remain present. The respondents had sent whatsapp messages and had also made phone calls to the applicant but he neither replied to the whatsapp messages nor did he attend the phone calls. This shows that every attempt was made to effect service on the applicant. Section 11 of the Act requires that the inquiry O.A.No. 7770/2029, shall be completed in accordance with service rules applicable to the par-
ties. Since both of them are Central Government employees, the Inquiry is conducted in accordance with CCS (CCA) Rules, 1965, In accordance with the provisions of CCS (CCA) Rules, 1965, the chargesheet has been served on the applicant. After completion of the inquiry, findings will be recorded and copy of the findings will be served on the applicant. So far the findings of summary inquiry have been served on the applicant.
1.9, We have thoughtfully considered the submissions made by the learned counsels of the respective parties.
02. For deciding the issue involved in the case at hand, relevant provi- sions of the Act will have to be looked into, Chapter TV of The Act deals with complaint and Chapter V deals with action to be taken during pendency of inquiry and on submission of inquiry report. Section 9 of chapter IV ofthe Act deals with complaint of sexual harassment. Section 10 provides for conciliation and section Il deals with inquiry into complaint. Section 10 of the Act provides that before initiating inquiry un- der section 11 and at the request of the agerieved woman, the Internal Committee and the Local Committee may take steps to settle the matter be- tween her and the respondent ( the applicant hererin) through conciliation, Sections 12 & 13 of Chapter V deal with action to be taken during pendency of the inquiry and on submission of inquiry report respectively.
Section Li, 12 & 13 are reproduced hereunder for ready reference:
CLA. No. 77/8023.
"Hi. daguiry inte complaint.-(1) Subject fo the provisions of section IG. the Internal Committee or the Local Cam- sutiee, as the case may be, shall where the respandent fs an employee, proceed fo make inguiry Inte the complaint in accordance with the prowsions of the service rales ap- plicable te the respandent and where no such rules exist, in such manner as muy be prescribed ar in case of a do- mestle worker the Local Comynitize shall, if prima facie case exist, forward the complain fo the police, within a period of seven days jor registering the case under section g +.4
800 of the indian Penal Code {43 af 1860), and any other relevant provisions of the said Cade where applicable:
Provided that where the aggrieved waman iifarais the Internal Comunittee ar the Local Comunitiees, as the case may be, that any term or condition of ihe senlement arrived at undér sub-section (2) of section 10 has not been couynied with by the respondent, the Internal Comuniitee or the Local Committee shall praceed to make an inquiry inta the complaint or as the case may be, Jorward the complaint to the police:
Provided further that where both the parties are eniplovees, the parties shall, during the course af inquiry, de given an apportunity of being heard and a copy of the findings shall he made available to both the parties en- abling them to make represeniation against the Nadings before the Conrmitiee, (2) Notwithstanding anything contained in section 509 ef the Indian Penal Code (45 of 1860), the Court may, when the respondent is convicted of the offence, order payment af such sums os i may consider appropriate, i@ fhe agerieved woman by the respondent, having regard io fhe provisions of section 15.
(3) Fer the purpose of making an ingniry under sub-section (1), the Internal Committee or the Local Com- mittee, as the case may be, shall have the same powers as are vested in a civil Court under the Code of Civil Proce - dure, 1908 (3 of 1908) when iving a suit in respect of the folowing matrers, namely:
(a) summoning and enforcing the attendance of any person and examining fim on oath, ih) requiring the discovery and production of doc-
wrens; ard fe) caw other matter which yur be prescribed, (#) The inquiry under sub-section (1) shall be completed O.A. No. 7770/2023.
within a periad af ninety days, i2. Action during pendency of ingnivy. - (1) During the pendency of an inquiry, on a written request made by the aggrieved woman, the Internal Committee ar the Local Committee, as the case may be, may recommend to the employer to-
fa) lransfer the agerieved. woman or the respondent fo any other workplace; or (2) grant leave fo the agerieved woman up to a period of three manths; or
(e) grant such other relief to the agerieved woman as nury be prescribed, (2} The leave granted to the aggrieved woman under this section shall be in addition ta the leave she would be ath- erwise entitled, (3) On the recommendation of the Internal Commtittee or the Lacal Conunitiee, as the case map be, under sub-sec- Now (1), the employer shall implement the recommenda- tions made under sub-section (1) and send the report af such implementation ta the Internal Committee ar the Lo- cal Connnittee, as the case may he,
13. Inquiry report. - (1) On the campletion of an inquiry under this Act, the Internal Committee ar the Local Com- mittee, as the cuse may be, shall provide a report of its findings to the employer or as the case may be, the Dis- triet Officer within a period of ten days from the date of completion of the inquiry and such repart be made avail- able to the concerned parties.
(2) Where the Internal Committee or the Local Com- mittee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, if shall recommend ta the employer and the Districs Off - cer that no action ts required to be taken in the matter (3) Where the internal Committee or the Local Com- wiutfee, ay the case may be, arrivey 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 jor sexual harassment as a miscon- duct in accordance with the provisions of the service ruley applicable to the respondent or where no such service rules have been made, in such manner ag niay be pre- soribed:
GLA. No. vro/so84.
(i) to deduct, notwithstanding anything in the service rules applicable io the respondent, jrom the salary or wages Of the respondent such sum as if may consider ap-
propriate to be poid tn the agerieved woman or to her le- gal heirs, as it may determine, in accordance with the pro- wisions of section i 3:
Pravided that in case the emplover is unable te make such deduction from the salary of the respondent due to his being absent from didy ar cessation af emplavment it imay direct io the respondent fo pay such sum to the ag- Brieved woman:
Provided further that in case the respondent fails to pay fhe sum referred to in clause (11), the Internal Conunittee was the ease may be, the Local Committee may forward the order for recavery of the sum as an arréar of land rey- enue fo the concerned District Officer (> The employer or the District Oficer shall act xpan ihe reconynendation within sixty days of its receipt by Suet 2.1. A bare reading of section 11 makes it clear that where the com-
plainant and the respandent Le. the applicant hereiri are employees, the ICC shall proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent, 2.2. In the case at hand, both the aggrieved woman and the applicant are Central Government employees and, therefore, the inquiry was rightly iniliated in accordance with the rules applicable to the Central Government employees Le. CCS (OCA) Rules, 1965,
23. Proviso (i) of section 1] cantemplates that a copy of the findings be made available to both the parties, if both of them are employees, to enable them ta make representation against the findings of the committee, Ba O.A. No, 770/2029.
"12.4. Section 13 of the Act contemplates that on completion of an inquiry, 'the ICC shall provide a report of its findings to the employer within a pe- riod of 10 days from the completion of inquiry and such report shall be made available to the concemed parties. These provisions contemplate that x the inquiry be made by the commitice only after report of the f provided to the employer by the ICC.
2.5. Section [1 and section 13 clearly indicate that the inquiry to be con- ducted under section 13 is not a preliminary inquiry but it should be a full-
fledged inquiry as to the finding of the facts.
2.6, Learned counsel for the applicant in support of this submission placed reliance on the case of LS Sibu Vs. Air dndia Limited, 2016 SCC OnLine Ker $11; (2016) 2 KLG 434: (2015) 180 FLR 488; (2016) 2 KLT F74:2016 Lab IC 2419: (2016) 3 RCR (Cri) 406: 2016 LLR 732. In para lO and 1] itis held thus:
"it. Seetion £3 read with Section 3] clearly indicates the enquiry to be concluded under Section 13 is nota pretiny- mary enquiry contended by the respondents hut tt should be a full fledged enguiry as ta the Jinding af fact. This is 80 clear from Section 13 £3) (0). The enquiry that has to he conducted by ICC in same manner to Prove misconduer in disciplinary proceedings as referrable in Service R ules, if RO Service Rules exist fn sach manner domeste enquiry is conducted.
il, The status of the comunitee, therefore, deemed to be an inguiry Comunittee for disciplinary action under the ser- vice rules (See order of the Har 'ble Supreme Court jn Medha Kodwal Lele vy. Union of India F2013) 1 SCC ZT] thus when the enguiry is concluded. what ty left to the dis- cretion of the emplayer to take action in accordance with fo he OA. No. 77a /2022.
service rules for the proven nusconduct. If the Central Ciel Serviees (Classification, Control and Appeal) Rules would appl iy the starting point < A aétion referred in See- tion 13 (3) of the Act 24/2013 fs fram the proceeaings un- der Rule 15 of Part [¥ of the above rules. Thus, the choice left to the employer is io impose penalty in accordance with the service rules on a proven misconduct, [f the ser- vice rule provides any punishment for such misconduct, the punistonent can be imposed based on such findings."
eed fev bs
2. Thus, it is the ICC whe is the inquiring authority. It has to inquire into the allegations made by the complainant and submit its report to the disviplinary authority.
5.8. Ag indicated above, since the applicant and the complainant are Government employees, inquiry has to be initiated as per section 11 of The Act, in accordance with the rules applicable to the Central Government om- ployees Le. CCS (CCA) Rules, 1965. Rule {4 of CCS (CCA) Rules, 1965 deals with procedure for imposing major penalties. Proviso has been added to Rule 14. From the proviso, it is clear that complaints committee shall be deemed to be the inquirmg authority appointed by the disciplinary author- tty for the purpose of CCS (CCA) Rules, 1965, lt further provides that the complaints committee shall hold the inquiry into the complaint of sexual harassment as far as practicable in accordance with the procedure Jaid down in COS (CCA) Rules, 1966, unless separate procedure has been prescribed by complaints committee for holding the inquiry.
4.5. From these observations it is apparent that ICC is the Inquiring au-
42OA. No. 73/2023, thority. In the case of dureliane Fernandes Vs. State of Gea and Others, Civil Appeal No, 2482 of 2014, decided on 12% May, 2023 it has been held that when misconduct relates to a complaint of sexual harassment at work- place, complaints committee dawns the mantle of the inquiring committes.
3. In the light of above, the inevitable conclusion is that the IOC is the inquiring authority under the Act and it has to conduct full fledged, not preliminary inquiry. In the case at hand, the ICC held only preliminary inquiry.
3.1. The Central Government has framed The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (hereinafter referred as the Rules), which were published in the gazette of India on 09" December, 2013. lt means they came into force from that date Le. 09" December, 2013, 3.2. Rule 7 of The Rules deals with the manner of inguiry into the com- plaint. Rule 7 () states that on receipt of the complaint, the complaint committee shall send one of the copies received from the aggrieved woman under sub-rule (1) to the respondent within a period of seven working days. Rule 7 (3) states that the respondent shall file his reply ta the complaint alongwith documents within a period nat exceeding 10 working days from the date of receipt of the documents by him. Rule 7 (4) states that the complaints committee shall make inquiry into the complaint in accordance with the principles of natural justice. Rule (3) mandates that the complaints OA. Ne. e7a/aoaa, committee shall have the right to terminate the inquiry proceedings or to give an ex-parte decision on the complaint, if the complainant or respondent fails, without sufficient cause to present himself or herself for three consecutive hearings convened by the Chairperson or Presiding Gificer, Nis appended by a proviso te the ef¥ect that termination of proceedings or ex-parte order may not be passed without giving a notice in writing fteen days in advance to the parties concerned, 3.3. inthe case at hand, both the applicant and the complainant are Cen- tral Government employees. Therefore, CCS (CCA) Rules, 1965 are pplicable to them and, therefore, the inquiry was initisted in terms of rule 14 sub-rule 2 of CCS (CCA) Rules, 1968. However, while conducting the inquiry, the ICC did not follow any of the provisions of rule 7 of The Rules. Notice ought to have been given within 7 working days. However, notice has been given on 16" October, 2019 Le. after more than 3 months. Ex-parte order ought fo have been passed after giving notice in writing, 'That was also not done. This clearly shows that principles of natural justice have been blatantly violated by the ICC. The applicant was not given opportunity to put up his case and ex-parte order was passed. Enquiry was hurriedly completed without following pinciples of natural justice. The report, therefore, camnat be accepted,
34. Mr VLA. Nagrani submitted that it is not permissible for the respon-
dents now to initiate inquiry because the inquiry is not completed within 90 ET ree tt ene, ig O.4. No. 70/2029, idays, We do not feel so.
35. On reading section 1} (4) of The Act, it does not appear that any consequence is provided by the Act, if the inquiry is not completed within a period of ninety days. As per the statutory interpretation, if consequence is not provided, in that case if is not reated as a mandatory provision.
3.6. This aspect has been clearly dealt with in the case of Sy Vinay Ku- mur Rai Vs. The Union of India and others, 2022 (3) SER 332 ¢ Tripura), decided on 19 September, 2021, Following has been held in the case of sti Vinay Kumar Rai (supra):
"13.The contention that the inguiry was not completed within ninety days ag Provided in sub-section i4} of Section 17, therefore, must be set aside does not stand te fogie at all. Section 7} of the Act pertains fo inguiry into complaint, Sub-section Gof Section if provides that subject ta the provisiony of Seetioni0, the Internal Cammittee or the Local Comunittee, as the case may be, Proceed to make inquiry into the conuaint 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 regisiering the case under Section 509 af the ineian Penal Code. Subsection, (4) of Section J} provides that the inguiry under sub-section (1) shall be completed within a period of ninety days. Sub-section i@} of Section I nowhere provides the consequences for not completing the inguiry within ninely days. Oreinarily ay per the principles of Shitutory interpretation when a Provision which provides for a time linut is mot coupled with any penal ar adverse consequences in completing the fask so envisaged under the Mtande, 1§ mot considered mandatory. In any case, if would be wholly iogieal that Jor the inahility of the committee to complete the inquiry inte the complaint of sexual harassment the deerieved person would suffer the fate of the complaint being terminated without eonclusion. Jn phiuin terms. the legislative intent fs very clear namely that such complaint should be treated with Seriousness and should he OA. No, 770/023, completed as soon ax possible so that 7 the allegations are correct the agerieved person may get fustice and respite Jrom further harassment and if a alleg getions are found to be wnirue the person against WHOM & uch complainn is nade may get honourable exoneration. However, this time lonit rovided in sub-section (4) of Section 1] cannot be seen as , lerminal poiut bevond which the inquiry cannoli caniinue, "
3.7, In the case at hand, delay in completing the inquiry is not attributable to the complainant. ft would be Hlogical that for the failure of the committee to complete the Inquiry into the complaint of sexual harassment within 90 days, the aggrieved worran should suffer. This argument would have had some relevance, if the delay had occasioned due to the causes attributable to the complainant. Therefore, this argument cannot he accepted.
3.8, Both the complainant and the applicant are teachers.
Non-compliance of the provisions of the rules by the comunittes cannot ¢ goxuel herassment by a lady teacher, Lod
3. Since the principles of natural justice have not been followed, we deem it appropriate to set aside the report dated 22th October, 2019, Since shargesheet is based on the preliminary report, we deem it appropriate to set aside the chargesheet also. Therefore, we allow the OA and pass the following order:
(a) Order of LOC dated 21% August, 2023 is set aside, ensure to the benefit of the applicant, especially when it is a complaint of OA. No. 77vo/aosa,
(b) Charge sheet dated 17" August, 2022, is set aside,
(c) Case is remitted to ICC for denovo inquiry,
(d) ICC shall issue notice to the applicant within 15 days from the date of receipt of copy of this order by the ICC as per Rule 7 of The Sexual Harassment of Woman At Workplace (Prevention, Prohibition and Redres- sal) Rules, 2013.
(@) ICC shall, while conducting the inquiry follow principles of natural justice and afford full opportunity to the applicant to defend/put up his case and complete the enquiry within 04 months from the date of receipt of copy of this order by the ICC. Applicant to extend cooperation in completion of the inquiry. No costs. Pending MAs, if any, stand closed, (Dr. BhagWan Sahai) (Justices MDG. Sewlikar) Member (A) Member (1)