Central Administrative Tribunal - Delhi
Dr Shankar G Aggawal vs M/O Science And Technology on 6 November, 2019
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.977/2018
MA No.1073/2018
Reserved on : 25.09.2018
Pronounced on : 13.11.2018
Hon'ble Mr. Justice L. Narasimha Reddy, Chairman
Hon'ble Ms. Aradhana Johri, Member (A)
Dr. Shankar Gopala Aggarwal,
Senior Scientist, Room 216,
Gas Meterology Section,
Environmental Sciences & Bio Medical
Meterology Division, CSIR-NPL,
New Delhi-110012. ... Applicant
( By Mr. A. K. Behera and Mr. Piyush Gaur, Advocates )
Versus
1. Union of India through Secretary,
Ministry of Science and Technology,
Government of India,
Technology Bhawan, New Mehrauli Road,
New Delhi-110016.
2. Director,
CSIR-National Physical Laboratory, India,
Dr. K. S. Krishnan Marg,
New Delhi-110012.
3. Controller of Administration,
CSIR-National Physical Laboratory, India,
Dr. K. S. Krishnan Marg,
New Delhi-110012.
4. Dr. Sushree Swarupa
Working as Senior Scientist in
National Physical Laboratory, CSIR
Aged about 44 years
OA-977/2018
2
W/o late Dr. Sunil Dutta Sharma,
R/o TRSA-76, NPL Colony,
New Rajendra Nagar,
New Delhi-110060. ... Respondents
( By Mr. Jayesh Kumar Unnikrishnan, Mr. Bhuvnesh Satija, Dr.
C. Shamsuddin Khan, and Mr. Anil Singal, Advocates )
ORDER
Justice L. Narasimha Reddy, Chairman :
This OA is filed challenging the memorandum of charge dated 22.01.2018 issued to the applicant. A direction is also sought against the respondents to open the sealed cover containing the recommendations of the DPC as regards promotion to the post of Principal Scientist, and to extend the consequential benefits to the applicant.
2. The applicant states that he worked in Hokkaido University, Japan between 2005 and 2009, and thereafter joined as Senior Scientist (ad hoc) in the National Physical Laboratory (NPL), New Delhi, a unit of CSIR, the 2nd respondent herein. He is said to have been assigned the responsibility pertaining the Calibration and Measurement Capability (CMC), and with the dint of hard work of himself and his team, as many as 13 CMCs were successfully reviewed by the International Peer Review. It is also stated that he worked on Fast Track OA-977/2018 3 Translational (FTT) Project, and he mentioned several achievements in the field.
3. The applicant was considered for assessment to the next higher grade for the year 2013-14, for which the DPC met on 01.12.2016. He contends that when he did not get the result of the DPC, he made several representations, but of no avail, but came to know that the result of the DPC was not declared on account of an inquiry initiated against him. The applicant states that there was absolutely no basis for the proceedings initiated against him.
4. It is stated that Dr. Sushree Swarupa Tripathy, the 4th respondent herein, made a complaint against the Chief Scientist of the organisation, Dr. Prabhat Kumar Gupta, and that though no allegation whatever was made against the applicant, the charge memorandum was issued against him. He contends that either in the statement of imputation or in the complaint filed by the 4th respondent against Dr. Prabhat Kumar Gupta, there is no allegation against the applicant, still the charge memorandum was issued to him, as though he used unwelcome language against the 4th respondent, whereas the complaint itself does not mention that.
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5. Counter affidavit is filed on behalf of the respondents 1 to 3. It is stated that the charge memorandum cannot be interfered by the Tribunal, and reliance is placed upon several judgments rendered by the Hon‟ble Supreme Court. It is stated that a preliminary investigation was conducted by the Internal Complaints Committee (ICC) of the 2nd respondent organisation, and since it was found that there is substance in the allegations against the applicant, the charge memorandum was issued under rule 14 of the CCS (CCA) Rules, 1965, after obtaining the approval of the disciplinary authority. Various contentions raised by the applicant in the OA are opposed.
6. The applicant filed a rejoinder to the counter affidavit.
7. We heard Shri A. K. Behera, learned counsel for the applicant, and Shri Jayesh K. Unnikrishnan, Shri Bhuvnesh Satija and Dr. Ch. Shamsuddin Khan, learned counsel for respondents 1 to 3, and Shri Anil Singal, learned counsel for the 4th respondent.
8. The challenge in the OA is to the charge memorandum itself. The grounds on which a charge OA-977/2018 5 memorandum can be interfered by the Tribunal or Court are very limited. The first is where the charge memorandum is issued by an authority not vested with the power, and second is where no misconduct can be discerned even if the contents of the charge are taken as true. In rare cases, the question as to the basic tenability of the invocation of the provisions of law, and the adherence or otherwise to the procedure prescribed for initiation of disciplinary proceedings, is also gone into.
9. The article of charge framed against the applicant reads as under:
"That Dr. Shankar G. Aggarwal, while functioning as Senior Scientist at CSIR-NPL committed misconduct inasmuch as Dr. Shankar G. Aggarwal while working in Chemical Metrology Section during January 2011 to August 2013 used to humiliate Dr. S. S. Tripathy during official meetings. The language used by Dr. Shankar G. Aggarwal were found unwelcome by Dr. S. Swarupa Tripathy, Senior Scientist, CSIR-NPL which made her uncomfortable and uneasy at work.
That Dr. Shankar G. Aggarwal, Senior Scientist by his above acts created intimidating or offensive or hostile work environment for her.
Thus, Dr. Shankar G. Aggarwal, Senior Scientist by his above said acts has indulged in an act of sexual harassment of a woman at her workplace and acted in a manner unbecoming of a Council servant thereby, contravening provisions of Rule 3C(1) and Rule 3(1)(iii) of the OA-977/2018 6 Central Civil Services (Conduct) Rules, 1964, as made applicable to Council employees."
From a reading of this, it can be gathered that the allegation against the applicant is that while working in the Chemical Metrology Section between January, 2011 and August, 2013, he used to humiliate the 4th respondent during the official meetings. The statement of imputation is also in brief, and it reads as under:
"That Dr. S. Swarupa Tripathy, Senior Scientist (then Scientist) in CSIR-NPL was working in the Indian Reference Material (IRM) Section. That after retirement of Dr. A. K. Aggarwal, Head, IRM in 2007, the IRM Section was merged with the Analytical Chemistry Section headed by Sh. Prabhat Kumar Gupta, Chief Scientist and renamed as Chemical Metrology Section. That Dr. S. Swarupa Tripathy continued to work on IRM. Latger after joining of Dr. Shankar G. Aggarwal in CSIR-NPL in September 2010, the entire IRM related activity was looked after and supervised by Dr. Shankar G. Aggarwal.
That from January 2011 onwards (i.e. after the demise of Dr. Tripathy‟s husband in March 2011), Dr. Shankar G. Aggarwal started humiliating Dr. Tripathy always even in the meetings.
From January 2011 to August 2013, while carrying out experiments and in the meetings, Dr. Aggarwal humiliated Dr. Tripathy constantly, saying „she does not know anything‟, „nothing is clear to her‟, „wo jhuth bolti hein‟, OA-977/2018 7 „Director had given me this activity and power to take action against you etc.etc.‟.
Thus, the language used by Dr. Shankar G. Aggarwal were found unwelcome by Dr. S. Swarupa Tripathy, Senior Scientist, CSIR-NPL which made her uncomfortable and uneasy to work.
Further, on 20.06.2011, from 03:00 PM to 08:00 PM, Dr. Shankar G. Aggarwal sat in room No.147 along with Dr. Tripathy and other four colleagues, but purposefully he used to order her to communicate small-small things through e- mails, though they had discussions many time personally. Throughout the day Dr. Aggarwal asked Dr. Tripathy, questions through e-mail from 03:00 PM to 08:00 PM.
Thus, Dr. Shankar G. Aggarwal, Senior Scientist by his above acts created intimidating or offensive or hostile work environment for her. Therefore, Dr. Shankar G. Aggarwal, Senior Scientist, by his above said omissions and commissions has indulged in an act of sexual harassment of a woman at workplace and acted in a manner unbecoming of a Council servant thereby contravening provisions of Rule 3C(1) and Rule 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964, as made applicable to Council employees."
In paragraph 3, it was mentioned that the applicant used certain expressions against the 4th respondent, and in para 5, a specific instance referable to 20.06.2011 is mentioned. If these are the allegations made by the 4th respondent against the applicant, certainly it is not a case for interference. It is here, that the complaint dated 09.05.2016, signed on 25.05.2016 by the OA-977/2018 8 4th respondent becomes relevant. It is filed as Annexure A-2 in the OA. It runs into four typed pages, and we have carefully gone through each and every sentence. Our objective was to ensure that if a woman employee was subjected to humiliation or harassment, the person responsible for that must be proceeded against in law, and if on the other hand, the complaint does not disclose anything worthwhile against the applicant, a Senior Scientist, cannot be subjected to the ordeal of facing disciplinary inquiry at an advanced stage of his career, just for nothing. Annexure A-2 is addressed to the Director General, CSIR, and the subject and reference thereof read as under:
"Subject: To expunge of unsubstantiated, baseless and false allegations labeled against me by Mr. Prabhat K Gupta (on his letter to Vigilance Section dt. 18.12.2015); To set aside my transfer order vide OM no.5(4) Gr.IV/2015.Vig., dt. 11.04.2016, received on 13.04.2016; To render justice from deliberate repeated harassment, highhandedness and humiliation at work place since September 2010 to me by Mr. Prabhat Kumar Gupta - Requested.
Ref.: I. Office memorandum no. 5(4) Gr.IV/2015.Vig., dt. 11.04.2016 which was received on 13.04.2016; II. A letter given on 14.03.2016 to Vigilance Section requesting issuance of a copy of the final decision taken and expunge of allegations; III. O.M. Ref. No.PME/OM/09/2016, dt. 23/02/2016 regarding rename of Analytical Chemistry; IV.
OA-977/2018 9 The reply submitted on 15.01.2016 to the Vigilance Section in response to its letter No. 5(4) Gr.IV/2015.Vig., dt. 12.01.2016; V. Letter from Vigilance Section to me asking comments on reply of the letter dt. 18.12.2015 given by Mr. Prabhat K. Gupta; VI. OM No.5(3)Gr.IV/2015.Vig., dt. 28/01/2015 stating change of my Reporting Officer; VII. My letter to DNPL requesting change of my Reporting Officer, dt. 13/01/2015; VIII. Recommendation of committee duly approved by Director, NPL, dt. 11.08.2015; IX. My earlier complaint against Mr. Prabhat K. Gupta dt. 30.06.2015 and 05.08.2013."
Nowhere in that, the name of the applicant is mentioned. The entire complaint was against Mr. Prabhat K. Gupta, and it was in relation to a letter dated 18.12.2015 addressed by Mr. Prabhat K. Gupta to the Vigilance Section, and an order of transfer dated 11.04.2016 passed by him against the 4th respondent. She has also referred to the harassment and highhandedness and humiliation at workplace since September, 2010, said to have been meted out to her by Mr. Prabhat K. Gupta. The only place where the name of the applicant occurs is in page 2. Here again, the allegation is not that the applicant caused any humiliation to the 4th respondent, but Mr. Prabhat K. Gupta is alleged to have shown some favouritism to the applicant, and that it became unbearable for the 4th respondent ever since the applicant joined. Relevant paragraph reads as under:
OA-977/2018 10 "It is to be noted that the earlier complaint was lodged before the then Director, NPL against Mr. Prabhat K Gupta as cited under reference alleging his perpetual harassment at work place by resorting to and through insidious muckraking activities, invidious suspicious and acts, sinister designs, nefarious tactics; injecting a sense of fear psychosis to spoil my career and biasing the mind of others to act in a prejudicial & detrimental manner (details set out in my complaint on 05.08.2013). Mostly, it was unbearable after the joining of Dr. Shankar G. Aggarwal, Sr. Scientist and later on the demise of my husband for his ill intensions towards me. From time to time has caused gross discrimination by mis-utilising the powers & privileges enjoyed by him and on the other hand showing patent nepotism/favoritism to his coterie (especially to Dr. Shankar G. Aggarwal, Sr. Scientist who also is hand-in-gloves often harasses and abuses me) by abusing his authority & official position. Needless to mention that Mr. Prabhat K. Gupta used to compel me to generate wrong test reports for the fake National Standards (Certified reference materials, CRMs) prepared by his coterie (which are being sold out and received complaints from the concerned quarters). He threatened me several times to oust me from the institution by his influence, sidelines me from my field of activity by giving credits to his coterie especially Dr. S. G. Aggarwal (for example - in the certificates of our National Standards produced in 2007-2008, my name has been replaced by his name in the major role though Dr. Aggarwal was not existing in CSIR-NPL in 2007-2008). Later on September 2014, Prof. Ramesh Chandra Budhani, the then Director, NPL had categorically made two groups to which Mr. Prabhat K. Gupta concealed/suppressed the fact and did not implement the same. Later on, on August 2015, Dr. Chandrasekhan, the then Dirrector, NPL had changed my Reporting Officer, clarified the OA-977/2018 11 existing of two groups by previous DNPL and warned him to stop interfere with me. However, in spite of all these, Mr. Prabhat K. Gupta purposefully and cunningly wrote in his reply letter dt. 18.12.2015 to the Vigilance Section merely alleging baseless, false, unsubstantiated allegations about my integrity, character, behaviour etc. etc. etc. Thus such baseless allegations need to be nipped in the bud at this juncture."
In this paragraph, the name of the applicant is mentioned only in the context of his having been shown nepotism by Mr. Prabhat K. Gupta, and Mr. Gupta giving credits to his coterie, especially the applicant herein, and sidelining the 4th respondent. It was not even alleged that the applicant had even uttered a word against the 4th respondent. The prayer of the 4th respondent in her representation was as under:
"Therefore, DG-CSIR is requested to kindly provide me copies sought for afore mention, the documents if any, relied upon and action deemed fit and proper be taken against Mr. Prabhat K. Gupta under the facts and circumstances and the unsubstantiated remarks made by him by expunged. All documents pertaining to this matter may be called from Vigilance Section, NPL for perusal, consideration, affecting & arriving a decision in the interest of justice and the same may kindly be communicated to me in writing as expeditiously as possible preferably within a period of thirty days.
Prima facie, as an inherent instinct, Mr. Prabhat K. Gupta at work place inflict mental OA-977/2018 12 tension, trauma, agony through various ways to whom he targets in such immense proportions that the same leaves rankles in the mind forever. He is ever cunning in snubbing and suppressing allegations/misdeeds against him by advancing convoluted & meretricious reasoning and for, managed to equivocate higher-ups till date. I would further therefore, like to request you to look into the matter personally urgently and action deem fit and proper so as to allow a lady employee to work peacefully and hassle free at workplace in accordance with law. At the same time, I make it clear that I am subject to correction for bringing such unpalatable things to your kind notice in writing for the first time as there is no efficacious alternative remedy/antidote under the compelling circumstances & exigencies to contain & curb him for all times to come for betterment of my career/job and above all to uphold the ethos of the Institutions" (emphasis supplied).
It is evident that the 4th respondent did not make any report for taking action against the applicant.
10. In another complaint/letter dated 05.08.2013 filed as Annexure A-3, the 4th respondent mentioned that Mr. Prabhat K. Gupta was showing nepotism towards the applicant. In para v. She mentioned as under:
"v. Causing gross discrimination by mis- utilising the powers & privileges enjoyed by him and on the other hand showing patent nepotism/frvoritism to his coterie (especially to Dr. Shankar G. Aggarwal, Sr. Scientist who also often harasses and abuses OA-977/2018 13 me) by abusing his authority & official position."
11. The 4th respondent filed a writ petition No.12078/2016 before the Delhi High Court with a prayer to direct the CSIR to inquire into the allegations contained in the complaint dated 25.05.2016 (Annexure A-2 herein). Another prayer made therein was to restrain the fourth respondent therein, i.e., Prabhat Kumar Gupta, from interfering with her working. Though the applicant herein was shown as respondent No.5 in the said writ petition, no relief was claimed against him. It was mentioned that her complaint was referred to the ICC, and taking note of the same, the writ petition was disposed of on 25.04.2017.
12. The ICC is said to have decided to initiate proceedings against the applicant. It is stated that in the statement recorded by the ICC, the 4th respondent had made certain allegations. In that statement also the entire allegation was that Prabhat Kumar Gupta ill treated her. The context in which the name of the applicant was mentioned in the statement is as under:
"From July 2008, Prabhat Sir has repeatedly been saying us that he is going to hire a person OA-977/2018 14 from abroad who will help us for our CMC filing and Peer review and he was not assigning the work particularly to any scientist of our group in spite of repeatedly getting pressure from our the then Director, NPL. In September 2010, Dr. Shankar G. Aggarwal has joined in our group against permanent post as Sr. Scientist (before that he was in temporary position since Mid 2009). Since then all the activity of our group has been given to him and in aqueous CRM, I was instructed to work under him. He was not acquainted with the activity so whenever we had difference of opinion (SOPs had written by him, Registers/records, Results are available with me) in carrying out the job, Dr. Aggarwal could make out the difference created by the Head and thus, used to start scolding me that "she does not know anything", "Nothing is clear to her", "Woh Jhuth Bolti Hein", "Director had given me this activity and power to take action against you etc. etc. in presence of Prabhat Sir and our other colleagues in our group meeting. In one context in our group meeting, when I asked to Prabhat Sir how, my name has been deleted from the certificates of our CRMs prepared in 2007 (before the joining of Dr. Aggarwal) and inserted Dr. Aggarwal‟s name in that as "he has coordinated for those CRM preparation"??, in reply to that Dr. Aggarwal said "go to Director, NPL and ask him, Director has given me this right". During those days since my husband had passed away so under the circumstances I did not utter a single word to him and rather preferred to remain silent. So many times in reaction to my complaint to Prabhat Sir against Dr. Shankar G. Aggarwal, Prabhat Sir advise him in presence of me not to quarrel with me as he is under probation period and said to him "tujhe kurshi nehin sambhalnna hein kya"?. With the active support of Prabhat Sir, Dr. Aggarwal is encouraged to harassing me since January 2011 continuously in many unpredictable ways."
OA-977/2018 15 Similar reference was made at a later stage. For example, in the last paragraph, she stated as under:
"Sir, I am extremely sorry to disturb you but it is highly exigency to bring to your kind notice being my Apex authority as it is difficult to tolerate the rough behaviour, sarcastic laugh etc. of Prabhat Sir and Dr. Aggarwal..."
13. From the above, it becomes clear that it is in the statement recorded by the ICC that the 4 th respondent added several details, without mentioning anything in her original complaint. In case the 4th respondent had any grievance vis-a- vis the applicant, one expects her to submit a complaint clearly mentioning the acts and omissions on his part, and requesting the concerned to take action against him. In a given case, even a criminal complaint can be filed, if the situation warranted. When nothing of that sort was made, a senior scientist of a reputed organisation cannot be subjected to the ordeal of disciplinary inquiry.
14. It is easy to brush aside the grievance of the applicant by stating that he can come out clean in the disciplinary inquiry, if there is nothing against him. However, the damage caused to his reputation and the promotional avenues which he stands to lose in the meanwhile, would be OA-977/2018 16 phenomenal. If there is a direct complaint against him with any allegations of harassment, he can be subjected to the disciplinary proceedings without any mercy or without having any regard to the office held by him. The endeavour of the rule-making authority, in particular, and the society in general, is to protect the honour of the woman at workplace, needs to be respected to the hilt. At the same time, it should be ensured that no such proceedings are initiated when there does not exist any complaint with specific allegations.
15. When the complaint is specifically against one person, i.e., Prabhat Kumar Gupta, and action is sought against him, the applicant could not have been brought to the fold, simply because his name was mentioned, by way of passing reference.
16. If the 4th respondent has any specific grievance against the applicant, she can certainly make a complaint, and the prescribed procedure can be invoked. As the things stand now, we do not find any complaint against the applicant, and the statement recorded from the 4th respondent by the ICC, has travelled beyond the scope and content of the complaint in OA-977/2018 17 Annexure A-2, to the extent the applicant was brought into the fold.
17. Therefore, the OA is allowed, and the charge memorandum dated 22.01.2018 is set aside. It is, however, left open to the 4th respondent to file complaint against the applicant, if she has any grievance against him, duly referring to the details thereof, and in such an event, it shall be open to the respondents 1 to 3 to take necessary action in accordance with law. There shall be no order as to costs.
( Aradhana Johri ) ( Justice L. Narasimha Reddy )
Member (A) Chairman
/as/
OA-977/2018
18
I have gone through a judgment prepared by Hon‟ble Chairman. I would like to thank the Hon‟ble Chairman for giving me an opportunity to express my views. With great respect, I submit my disagreement with the conclusions arrived at by the Hon‟ble Chairman.
2. This O.A is filed challenging the memorandum of charge dated 22.01.2018 issued to the applicant. A direction is also sought against the respondents to open the sealed cover containing the recommendations of the DPC as regards promotion of the applicant to the post of Principal Scientist, and to extend the consequential benefits to the applicant. A direction to maintain status-quo with respect to disciplinary proceedings was passed on the very first day of hearing on 01.03.2018.
3. The principal argument of the applicant is that the complaint made by the complainant- respondent no.4 was basically against the Chief Scientist Dr. Prabhat Kumar Gupta. Therefore, no charges of misconduct can be brought to bear OA-977/2018 19 against the applicant. Further, the allegation does not come under the definition of misconduct as defined in Section 5.1 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
4. It is the contention of the respondents that both Dr. Prabhat Kumar Gupta and the applicant, Dr. Shankar Gopala Aggarwal indulged in sexual harassment. Respondent no.4 complained several times in the matter. Ultimately, her reporting officer also had to be changed.
5. Heard Mr. A. K. Behera, learned counsel for applicant and Mr. Jayesh K. Unnikrishnan, Shri Bhuvesh Satija and Dr. Ch. Shamsuddin Khan, learned counsels for respondents 1 to 3, and Shri Anil Singal, learned counsel for the 4 th respondent.
6. The first and foremost question to be considered is whether the nature of the complaint is covered under The Sexual OA-977/2018 20 Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Section 2
(n) reads as follows :-
"(n) "sexual harassment" includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
The Act, further goes to say that :-
"3. Prevention of sexual harassment.- (1) No woman shall be subjected to sexual harassment at any workplace.
(2) The following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment:--
(i) implied or explicit promise of preferential treatment in her employment: or
(ii) implied or explicit threat of detrimental treatment in her employment; or
(iii) implied or explicit threat about her present or future employment status: or
(iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or
(v) humiliating treatment likely to affect her health or safety.
7. Therefore, the subject matter of the complaint is squarely covered by the said Act.
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8. On the second issue of whether complaint has been made against the applicant Dr. Shankar Gopala Aggarwal or if it is only against Dr. Prabhat Kumar Gupta, it is found that several complaint letters have been sent by the respondent no. 4.
9. Attention is drawn to the following paras of a 6 page complaint of R-4 placed at the end of Annexure A-3 after the letter of 05.08.2013 "Since July 2008, Prabhat Sir has repeatedly been saying us that he is going to hire a person from abroad who will help us for our CMC filing and Peer review and he was not assigning the work particularly to any scientist of our group in spite of repeatedly getting pressure from our the then Director, NPL. In September 2010, Dr. Shankar G. Aggarwal has joined in our group against permanent post as Sr. Scientist (before that he was in temporary position since Mid 2009). Since then all the activity of our group has been given to him and in aqueous CRM, I was instructed to work under him. He was not acquainted with the activity so whenever we had difference of opinion (SOPs hand written by him, Registers/records, Results are available with me) in carrying out the job. Dr. Aggarwal could make out the difference created by the Head and thus, used to start scolding me that "she does not know anything", "Nothing is clear to her", "Woh Jhuth Bolti Hein", "Director had given me this activity and power to take action against you etc. etc. in presence of Prabhat Sir and our other colleagues in our group meeting. In one context in our group meeting, when I asked to Prabhat Sir how, my name has been deleted from the certificates of our CRMs prepared in 2007 (before the joining of Dr. Aggrawal) and inserted Dr. Aggarwal‟s name in that as "he has coordinated for those CRM preparation" ??, in OA-977/2018 22 reply to that Dr. Aggarwal said "go to Director, NPL and ask him, Director has given me this right." During those days since my husband had passed away so under the circumstances I did not utter a single word to him and rather preferred to remain silent. So many times in reaction to my complain to Prabhat Sir against Dr. Shankar G. Aggarwal, Prabhat Sir advise him in presence of me not to quarrel with me as he is under probation period and said to him "tujhe kurshi nehin sambhalnna hein kya"? With the active support of Prabhat Sir, Dr. Aggarwal is encouraged to harassing me since January 2011 continuously in many unpredictable ways."
10. Further, Dr. Nahar Singh, under whom the respondent no. 4 was placed after the matter blew up, gave a statement in reply to the question of ICC on 23.02.2017. In the statement, he clearly stated that following :-
".......After joining of Dr. Shankar all the IRM related activity were looked after and supervised by him. As Dr. Swarupa was well experienced in the field and Dr. Shankar was new, "to un dono ki aapas mein chalti rehti thi jab Dr. Shankar aise nehin aise karo bolte the‟. Dr. Shankar would use words in meetings like „tumhe nahin aata‟, „tum jhut bolte ho, nothing is clear to her etc. Same things Dr. Swarupa also told me many times........"
".......In auditorium during CSIR-NPL meeting with all scientists where Director intended to sort out grievances among staff members so that they may work together in better way, in which Dr. Swarupa called to tell her grievances she had for her Head and Dr. Shankar. Dr. Swarupa stated that she was being troubled by them a lot, that she would commit suicide if the matter is not resolved; that she was not being allowed to work, she was being interfered in her work despite having a separate activity ; that they wanted her to work as per their wish, the Head had written many allegations against her etc. etc......."
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11. Therefore, it cannot be said that respondent no. 4 did not complain against the applicant. It should be borne in mind that respondent no. 4 is a Scientist and does not seem to have command over English language nor does she have great drafting skills. Therefore, there are language mistakes but, the meaning of the complaint is still clear. Further, because of the escalation of the problem, respondent no. 4 was placed directly under Dr. Nahar Singh and taken away from the control of the applicant i.e. Dr. Shankar Gopala Aggarwal.
12. The next point for consideration is whether due procedure had been followed. Nowhere has it been alleged that the charge memo had been issued by the incompetent authority. Further, a preliminary inquiry was done and only after satisfaction of the D.G. CSIR, that the charges were made out and the charge memo dated 22.01.2018, along with the statement of Articles of Charge, imputations etc, was issued. Therefore, it is clear that due process had been followed and decision has been OA-977/2018 24 taken by the competent authority. It is a settled law that in this situation, the charge memo is not normally interfered with.
13. The issuance of charge memo is only a step to give an opportunity to the alleged delinquent officers who can disapprove the charges levelled against them in the departmental inquiry. Therefore, holding of a departmental inquiry cannot be throttled without allowing the same to be held.
14. The Hon‟ble Supreme Court in its judgment in the case of The Secretary, Min. of Defence and Ors. V. Prabhash Chandra Mirdha in Civil Appeal No. 2333/2007 decided on 29.05.2012 held as under :-
"11. Ordinarily a writ application does not lie against a chargesheet or show cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, chargesheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a chargesheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the Court. (Vide ; State of U.P. v.
OA-977/2018 25 Brahm Datt Sharma, MANU/SC/0711/1987 :
AIR 1987 SC 943; Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh & Ors., MANU/SC/0180/1996 : (1996) 1 SCC 327; Ulagappa & Ors. v. Div. Commr., Mysore & Ors., AIR 2000 SC 3603 (2); Special Director & Anr. v. Mohd. Ghulam Ghouse & Anr., MANU/SC/0025/2004 : AIR 2004 SC 1467; and Union of India & Anr. v. Kunisetty Satyanarayana, MANU/SC/5137/2006 : AIR 2007 SC 906).
12. In State of Orissa & Anr. v. Sangram Keshari Misra & Anr., MANU/SC/0860/2010 :
(2010) 13 SCC 311, this Court held that normally a chargesheet is not quashed prior to the conclusion of the enquiry on the ground that the facts stated in the charge are erroneous for the reason that correctness or truth of the charge is the function of the disciplinary authority.
(See also: Union of India & Ors. v. Upendra Singh, MANU/SC/0680/1994 : (1994) 3 SCC
357).
13. Thus, the law on the issue can be summarised to the effect that chargesheet cannot generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the chargesheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings."
15. Further, in case of Jagdish Baheti V. High Court of M.P. in W.P (C) No. 3201/2015, decided on 18.03.2015 held that the reason why ordinarily a writ petition should not be OA-977/2018 26 entertained against a mere show cause notice or charge memo is that, at that stage, the writ petition is held to be premature. A mere charge memo does not give rise as to any cause of action but, gives an opportunity to the charged employee to give reply. It is possible that after the reply it may be held that the charges are not established. The Hon‟ble Court has held the following :-
"6. Before we consider the contentions of the learned Senior Counsel for the petitioner it would be appropriate to consider the scope and extent of judicial review and interference in charge sheets permissible under Article 226 of the Constitution of India, as specified and laid down by the Supreme Court in a series of decisions. In the case of Union of India, v. Kunisetty Satyanarayana, (2006) 12 SCC 28, the Supreme Court has held as under :-
"13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show cause notice vide Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh, [(1996) 1 SCC 327], Special Director v. Mohd. Ghulam Ghouse, [(2004) 3 SCC 440], Ulagappa v. Divisional Commissioner, Mysore, [(2001) 10 SCC 639], State of U.P. v. Brahm Datt Sharma, [(1987) 2 SCC 179], etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere show cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show- cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is OA-977/2018 27 quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and / or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."
16. Further, in O.A 2107/2017, this Tribunal vide its order dated 15.10.2018 observed the following :-
"The truth or otherwise of the allegations contained therein can be established only in the course of the inquiry. Though extensive reliance is placed upon rule 11 of the CCS (Conduct) Rules, 1964, we desist from dealing with the same in detail, lest a final view is expressed, before the inquiry is conducted. The occasion to interfere with the charge memorandum would arise, if only it was issued by an authority not vested with the power, or when no misconduct can be said to have been established, even if the contents of the charge are taken as true."
17. From a perusal of the various rulings, it emerges that since charge memo is only a step in giving an opportunity to the charged officer to OA-977/2018 28 disprove the charges levelled against him in the departmental inquiry, it would be pre-mature to quash the same. In fact, the charge memo is an opportunity given to the charged employee and his right cannot be said to be adversely affected by the same. Further, normally, a charge memo is not quashed on the ground that the facts stated in the charge are erroneous for the reason that correctness or truth of the charge is the function of the disciplinary authority.
18. As far as relief regarding opening the sealed cover and promotion of the applicant is concerned, this relief cannot be allowed as disciplinary proceedings are ongoing.
19. Accordingly, the O.A is dismissed. There shall be no order as to costs.
________________________________________________ I would once again like to express my gratitude to the Hon‟ble Chairman for giving me an opportunity for consideration of this matter.
(Aradhana Johri) Member (A) OA-977/2018 29 CENTRAL ADMINSITRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI Original Application No.977/2018 This the 6th day of November, 2019 Hon'ble Mr. R.N. Singh, Member (J) Dr.Shankar Gopala Aggrawal Senior Scientist, Room 216, Gas Meterology Section, Environmental Sciences & Bio Medical Metrology Division, CSIR-NPL, New Delhi-110012.
...Applicant.
(By Advocate: Shri A.K. Behera with Mr.Piyush Gaur) VERSUS.
1. Union of India, Through The Secretary, Ministry of Science and Technology, Government of India, Technology Bhawan, New Delhi-16.
2. The Director, CSIR-National Physical Laboratory, India Dr.K.S. Krishnan Marg, New Delhi-12.
3. Controller of Administration, CSIR-National Physical Laboratory, India Dr.K.S. Krishnan Marg, New Delhi-12.
4. Dr.Sushree Swarupa working as Senior Scientist in National Physical Laboratory, CSIR Aged about 44 years, W/o late Dr.Sunil Dutta Sharma, R/o TRSA-76, NPL Colony, New Rajendra Nagar, New Delhi-110060.
...Respondents.
OA-977/2018 30 (By advocate: Mr.Bhuvnesh Satija, Mr.Anil Singal for R-4, Mr.Shubham Pundhir for Dr. Ch.Shamsuddin Khan) Reserved on : 25.09.2019.
Pronounced on : 06.11.2019.
ORDER By R.N. Singh, Member (J), The present OA, filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 is directed against the Memorandum dated 22.01.2018 (Annexure P-1) vide which it has been proposed to hold an enquiry against the applicant under Rule 14 of CCS (CCA) Rules, 1965 and therein the OA the applicant has also prayed for directions to the respondents to open the sealed-cover and to act upon the recommendation of the DPC and in case the DPC held on 01.12.2016 has recommended the applicant as fit for the post of Principal Scientist, a direction be issued to the respondents to promote him as Principal Scientist with effect from 15.04.2013 with consequential benefits.
2. The OA was heard by a Division Bench comprising of Hon‟ble Mr.Justice L. Narasimha Reddy, Chairman and Hon‟ble Ms.Aradhana Johri, Member (A).
OA-977/2018 31 There being a difference of opinion between their Lordships, the OA has been referred to me as third member. While his Lordship, Hon‟ble the Chairman has allowed the OA vide order dated 13.11.2018 and set- aside the impugned Memorandum dated 22.01.2018 leaving it open to the Respondent No.4 to file complaint against the applicant, if she has any grievance against the applicant by referring to the details thereof and in such event leaving it open to the Respondent Nos.1 to 3 to take necessary action in accordance with law. Her Ladyship, the Hon‟ble Member (A) has dismissed the OA.
3. The brief facts giving rise to the present OA are precisely enumerated as under:-
The applicant worked in Hokkaido University, Japan during the period 2005-2009 and he joined as Senior Scientist on ad-hoc basis in the year 2009 in the National Physical University, (NPL), New Delhi i.e. under the Respondent Nos.1 to 3 and his services were regularized to the post of Senior Scientist with effect from 08.09.2010. He is said to have been assigned the responsibility of Calibration and Management Capability (CMC) Field of International PRG in addition to the OA-977/2018 32 responsibility of ICP-HRMS (Inductively coupled plasma-
High Resolution Mass Spectrometer, Gas Metrology, Field Air Pulsation related standards FTT (Fast Track Translation) Project etc. and is also stated to have performed to the satisfaction of all concerned. The applicant was considered for assessment for the next higher grade for the year 2013-14 by a DPC convened on 01.12.2016 in which he appeared and was confident of being promoted keeping in view his performance. However, though the result of said DPC was declared in March, 2017 his name was not there in the list of recommended officers. Accordingly, he made various representations, however, of no avail. The applicant claims that he came to know that result of the DPC was kept in a seal cover in his case in view of an enquiry initiated against him. The applicant claims that there was no reason or any material for the enquiry/proceedings against him.
4. The ground taken to challenge the charge memorandum dated 22.01.2018 is that even if the allegation made in the article of charge are read with statement of imputation as they are, on face of it, no case of sexual harassment at workplace is made out against OA-977/2018 33 the applicant and therefore, the applicant is not required to undergo the rigor of a departmental enquiry and suffer loss of reputation and impediment in the matter of well deserved carrier progression, etc.
5. The Counter Reply has been filed on behalf of the Respondent Nos.2 & 3. It is contended therein that the prayer of the applicant in the present OA is unsustainable in view of the law laid down by the Hon‟ble Apex Court in the State of Orissa and Another versus Sangram Keshar Misra & Another (2010) 12 SCC 311 wherein it has been held that "This Court held that normally a charge-sheet is not quashed prior to the conclusion of the enquiry on the ground that the facts stated in the charge are erroneous for the reason that correctness or truth of the charge is the function of the disciplinary authority"
and Respondents No.2 & 3 have also placed reliance on the judgment of Hon‟ble Apex Court in The Secretary, MOD and Ors. Vs. Prabhash Chandra Mirdha (2012) 11 SCC 565 inistry of Defence 404 wherein the Court has held as follows:-
"9. Law does not permit quashing of charge sheet in a routine manner. In case the delinquent OA-977/2018 34 employee has any grievance in respect of the charge sheet he must raise the issue by filing a representation and wait for the decision of the disciplinary authority thereon. In case the charge sheet is challenged before a court/tribunal on the ground of delay in initiation of disciplinary proceedings or delay in concluding the proceedings, the court/tribunal may quash the charge sheet after considering the gravity of the charge and all relevant factors involved in the case weighing all the facts both for and against the delinquent employee and must reach the conclusion which is just and proper in the circumstance."
"13. Thus, the law on the issue can be summarised to the effect that charge sheet cannot generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge sheet be quashed at an initial stage as it premature stage issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings".
(emphasis supplied)
6. The Respondents have further referred to the OM No.22011/4/1991-Estt.(A) by Ministry of DoP&T dated 14.09.1992 and the judgment of Hon'ble Apex OA-977/2018 35 Court in K.V. Jankiraman case, AIR 1991 SCC 2010 to contend that sealed-cover cannot be opened till the completion of departmental enquiry. The Respondent Nos.2 & 3 have also referred to the order dated 25.04.2017 of the Hon'ble High Court of Delhi in writ petition (Civil) No.1207/2016, filed by the Respondent No.4 which the W.P. (C) was disposed of holding that in view of the submissions of Respondent Nos.2 and 3 no further directions are required. The applicant has filed Rejoinder wherein the applicant has reiterated the contentions as therein the OA and has stated that the judgment relied upon by the Respondent Nos.2 & 3 in their counter reply are not applicable in the facts and circumstances of the case.
7. I have heard Shri A.K. Behera with Mr.Piyush Gaur, learned counsel for the applicant and Shri Bhuvnesh Satija, learned counsel for the Respondent Nos.2 and 3, Mr.Anil Singal, learned counsel for Respondent No.4, Mr.Shubham Pundhir, Advocate appearing for Dr. Ch.Shamsuddin Khan, learned counsel for the Respondent No.1.
OA-977/2018 36
8. It is settled law by a Catena of decisions of the Hon‟ble Supreme Court that ordinarily no writ lies against a charge-sheet or show-cause notice. However, it is also well settled by a series of decisions of Hon‟ble Apex Court that in some rare and exceptional cases a charge-sheet and a show-cause notice, if it is found wholly without jurisdiction or for some other reasons, if it is wholly illegal can be quashed. In this regard, I may refer to the judgment of Hon‟ble Apex Court in the case of Union of India and Another versus Kunisetty Satyanarayana reported in (2006) 12 SCC 28. At the stage of framing of charge, the statement of facts and the charge-sheet supplied are required to looked into by the Court or the Tribunal as to the nature of the charges i.e., whether the statement of facts and material in support thereof supplied to the delinquent officer would disclose the alleged of misconduct, has been ruled by the Hon‟ble Apex Court in Dy. Inspector General of Police vs. K.S. Swaminathan reported in (1996) 11 SCC 498. Similarly, the Hon‟ble Apex Court in Union of India and Others versus Upendra Singh, reported in (1994) 3 SCC 357, has ruled as under:-
OA-977/2018 37 "6. In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of charges, if any) no misconduct of other irregularity alleged can be said to have been made out or the charges framed are contrary to the law.............."
9. In view of such position of the law, it becomes necessary for me to go through the Article of charges, statement of imputation of misconduct in support of Article of charge against the applicant, the complaint dated 09.05.2016 of the complainant i.e. the document No.1 vide which the article of charges framed against the applicant is proposed to be proved. The article of charges, annexed with the impugned memorandum dated 22.01.2018 (Annexure P-1) reads as under:-
"Article of Charge That Dr.Shankar G. Aggarawal, while functioning as Senior Scientist at CSIR-NPL committed misconduct inasmuch as Dr. Shankar G. Aggarwal while working in Chemical Metrology Section during January 2011 to August 2013 used to humiliate Dr.S.S. Tripathy during official meetings. The language used by Dr.Shankar G. Aggarawal were found unwelcome by Dr.S. Swarupa Tripathy, Senior Scientist, CSIR- NPL which made her uncomfortable and uneasy to work.
Thus, Dr.Shanker G. Aggarwal, Senior Scientist by his above acts created intimidating or offensive or hostile work environment for her.
Thus, Dr.Shankar G. Aggarwal, Senior Scientist by his above said acts has indulged in an act of sexual harassment of a woman at her workplace and acted in a OA-977/2018 38 manner unbecoming of a Council servant thereby, contravening provisions of Rule 3C(1) and Rule 3(1) (iii) of the Central Civil Service (Conduct) Rules, 1964, as made applicable to Council employees"
10. The statement of imputation of misconduct in support of the article of charges against the applicant reads as under:-
"That from January 2011 onwards (i.e. after the demise of Dr.Tripathy's husband in March 2011), Dr.Shanker G. Aggarwal stated humiliating Dr.Tripathy always even in the meetings.
From January 2011 to August 2013, while carrying out experiments and in the meetings, Dr.Aggarwal humiliated Dr.Tripathy constantly, saying 'she does not know anything', 'nothing is clear to her', 'wo jhuth bolti hein', 'Director had given me this activity and power to take action against you etc.etc'.
Thus, the language used by Dr.Shankar G. Aggarwal were found unwelcome by Dr.S. Swarupa Tripathy, Senior Scientist, CSIR- NPL which made her uncomfortable and uneasy to work.
Further, on 20.06.2011, from 03:00 PM to 08:00 PM, Dr.Shanker G. Aggarwal sat in room no.147 along with Dr.Tripathy and other four colleagues, but purposefully he used to order her to communicate small- small things through emails, through they had discussions many time personally. Throughout the day, Dr.Aggarwal asked Dr.Tripathy, questions through e-mail from 03:00 PM to 08:00 PM."
11. From the plane reading of the article of charge and statement of imputation, it is apparent that the complainant refers to certain incidents and utterances of the applicant during the period 2011 to 2013 and it is OA-977/2018 39 proposed to be proved primarily on the basis of her complaint dated 09.05.2016 (Annexure A-2). The subject of the complaint dated 09.05.2016 of the complainant reads as under:-
"To expunge of unsubstantiated, baseless and false allegations labelled against me by Mr.Prabhat K Gupta on his letter to Vigilance Section dt.18.12.2015); To set aside my transfer order vide OM no.5(4) Gr.IV/2015. Vig., dt.11.04.2016, received on 13.04.2016; To render justice from deliberate repeated harassment, highhandedness and humiliation at work place since September 2010 to me by Mr. Prabhat Kumar Gupta - Requested"
12. The prayer made by the complainant in the said complaint dated 09.05.2016 reads as under:-
"Prima facie, as an inherent instinct, Mr. Prabhat K. Gupta at workplace inflict mental tension, trauma, agony through various ways to whom he targets in such immense proportions that the same leaves rankles in the mind forever. He is ever cunning in snubbing and suppressing allegations/misdeeds against him by advancing convoluted & meretricious reasoning and for, managed to equivocate higher-ups till date. I, would further therefore, like to request you to look into the matter personally urgently and action deem fit and proper so as to allow a lady employee to work peacefully and hassle free at workplace in accordance with law. At the same time, I make it clear that I am subject to correction for bringing such unpalatable things to your kind notice in writing for the first time as there is no efficacious alternative remedy/antidote under the compelling circumstances & exigencies to contain & curb him for all times to come for OA-977/2018 40 betterment of my career/job and above all to uphold the ethos of the Institution."
13. I have gone through the complaint dated 09.05.2016 and find that the entire complaint is against one Mr. Prabhat Kumar Gupta and the same also refers to certain favours being bestowed by said Mr. Gupta to the applicant and in this regard the complainant refers to her another complaint dated 05.08.2013. In the said complaint even no action has been sought for by the complainant against the applicant in the present OA. I have also gone through the complaint dated 05.08.2013 (Annexure A-3) and find that in paragraph 5 thereof the name of the applicant is referred to by the complainant/Respondent No. 4 which reads as under:-
"(v). Causing gross discrimination by mis-utilising the powers & privileges enjoyed by him and on the other hand showing patent nepotism/favoritism to his coterie (especially to Dr.Shankar G. Aggarwal, Sr. Scientist who also often harasses and abuses me) by abusing his authority & official position; "
14. It is observed that no specific complaint of sexual harassment has been made by the Respondent No.4 against the applicant herein in the said complaint dated 05.08.2013. Besides in the prayer clause of the complaint also no action has been sought for by the OA-977/2018 41 Respondent No.4 against the applicant and the action has been sought only against the said Mr.Prabhat Kumar Gupta. As primarily the basis of the impugned charge memorandum is the complaint dated 09.05.2016 which refers to her earlier complaint dated 05.08.2013, it is necessary to see the fate of the said complaint dated 05.08.2013 and the same is admittedly available from another complaint dated 30.06.2015 (Annexure A-4), made by the Respondent No.4 which reads as under:-
"Subject: Request for creating hassle-free work milieu and rendering justice from deliberate repeated harassment, highhandedness and humiliation to me by Mr. Prabhat Kumar Gupta.
Ref.:My earlier letter/ complaint dated 05.08.2013.
Revered Sir, With reference to my previous written complaint to the then Director, National Physical Laboratory, Prof. Ramesh Chandra Budhani on 5th August 2013; subsequent discussion on 7th August 2013 with Dr. G. Bhagwan Narayana, the then Divisional Head and 8 th August 2013 with DNPL, regarding perpetual harassment and humiliation to me in one way or the other and on various manners by Mr. Prabhat Kumar Gupta, Chief Scientist.
Head, SASD 7.01 and Dr. Shankar Gopal Aggarwal, Senior Scientist, working in Analytical Chemistry, SASD 7.01.04, I elicit your kind urgent attention and intervention to the highhandedness, malice and abuse of authority of the Head of the DP and DU.
OA-977/2018 42 Since the earlier complaint culminated in compromise after verbal warning to Mr.Prabhat Kumar Gupta by the then Director Prof. Ramesh Chandra Budhani, there was no further impediments to me until the completion of his tenure. However, after his departure things again went unabated in its wrong direction which now being intolerable/unbearable necessitated to lodge this complaint once again at this juncture which runs as follows:-
(i) Arbitrary utilisation of discretionary power to sideline me from my field of activity by allowing his coterie to interfere/take over the field areas of activity.
(ii) Inflicting mental tension/ agony and torture by threatening me repeatedly in one form or the other including to spoil the career and to kick me out from NPL.
(iii) Due to his ill intention and personal grudge, now I have been totally ousted/deprived of from many tasks/duties/assignments earlier undertaken or yet to be started.
(Details of which attached herewith for your kind perusal in separate sheets ANNEXURE I of two pages duly signed by me in every page).
Therefore, I would request you to take urgent necessary actions to desist and refrain Mr. Prabhat Kumar Gupta from indulging in aforestated acts by abusing his authority and further request you to provide required protection at my work place to work smoothly,peacefully and hassle-free. With high regards Yours faithfully, (S. Swarupa Tripathy) Date30/06/2015 OA-977/2018 43 Place Delhi"
15. On plain reading of the aforesaid complaint dated 30.06.2015 (Annexure A4), it is evident that the earlier complaint dated 05.08.2013 of the Respondent No.4 has culminated in a compromise and verbal warning to the said Mr.Prabhat Kumar Gupta. Besides, the action has again been sought against the said Mr.Prabhat Kumar Gupta only in this second complain dated 30.06.2015 also.
16. The learned counsel for the applicant submits that in view of the complaint dated 30.06.2015, the competent authority has constituted a committee consisting of Dr.A.M. Biradar and Dr.V.N. Ojha and the said committee after inquiring into the matter made the recommendations dated 06.08.2015 which read as under:-
" Recommendations With reference to the representation of Dr. (Ms.) S. Swarupa Tripathy to DNPL, regarding some issues, he (Dr. Chandra Shekhar) constituted a committee consisting of Dr.A.M. Biradar and Dr.V.N. Ojha. The committee has discussed with all the concerned staff, including HOD and came to the following conclusion and found to be acceptable for Dr.S. Tripathy and Mr.P.K. OA-977/2018 44 Gupta, HOD#7.01. The recommendations are given below.
1) In Chemistry section two groups were formed by earlier Director, Prof.R.C.Budhani, one is under the supervision of Dr.Nahar Singh and other by Dr.Sankar G Aggarawal. Dr.Swarupa Tripathy was placed in Dr.Nahar Singh's group. This mode of working should continue.
2) Dr.Nahar Singh and Dr. Tripathy would continue to do the work/activities under inorganic elemental solutions preperations & Analysis for the work related to CSIR Network-MIST, PTB-CEMI and intercomparison program like APMP, QM-
P30 related to CMC issues. Head SASD- 7.01.04 may demarcate these activities work to other colleagues as well in consultation with Dr. Nahar Singh and Dr.S.G.Aggarwal, if required as per the need, timely completion and requirements for such projects deliverables.
3) Dr.Tripathy would route all her official work and related papers, requests, indents etc. through Dr.Nahar Singh. Dr.Nahar Singh would be linking with Mr. P. K. Gupta,HODdirectly for administrative and scientific issues for Dr.Swarupa. HOD (Mr.P.K. Gupta) will not interact directly with Dr. Tripathy from now onwards.
4) All Scientists of the group are advised to be focused on the work related to MiC and NPL objectives and use any instrument facilities in division/group, if required for their work, in consultation with the person responsible for maintaining that equipment. The equipment which are dedicated for specific MiC work & project would have priority for use by concerned persons for that work.
(Dr.A.M.Biradar) (Dr.Y N.Ojha)"
OA-977/2018 45
17. From the aforesaid, it is evident that in none of the aforesaid three complaints i.e. 05.08.2013, 30.06.2015 and 09.05.2016 any action has been sought by the Respondent No.4 against the applicant in the present Original Application. Off course, a passing reference has been made about the applicant as well.
However, that is also with regard to some undue favour being extended by the said Shri Prabhat Kumar Gupta to the applicant herein. It has also come on record that the Respondent No.4 has approached the Hon‟ble High Court of New Delhi vide Writ Petition No.12078/2016 (Annexure P-6) wherein the following prayer has been made:-
"i). A Writ of Mandamus or any other appropriate Writ or direction directing the Respondent No.2 to investigate and adjudicate upon the Complaint dated 25.05.2016 (Annexure P/1) filed by the Petitioner under The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 in accordance with law.
ii). A Writ of Mandamus or any other appropriate Writ or direction directing the Respondent No.2 or to investigate the same through itself or any other authorized and competent Authority to withdraw the certificate of analysis dated 30.01.2012 (P-
19), certificate of analysis dated 30.01.2012 (P-21), certificate of analysis dated 30.01.2012 (P-23) certificate of analysis dated 30.01.2012 OA-977/2018 46 (P-27) certificate of analysis dated 30.01.2012 (P-29).
iii). A Writ of Mandamus or any other appropriate Writ or direction, directing the Respondent No.2 and 3 to prevent the Respondent No.4 from interfering with the working of the petitioner with the Respondent No.3.
iv). To pass any other or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case in favour of the Petitioner and against the Respondents."
I find that though the applicant in the present OA has been impleaded as Respondent No.5 in the said writ petition. However, no specific allegation of sexual harassment has been made against him in the entire writ petition. Besides, no specific prayer has been made against the applicant therein. The said writ petition was disposed of by the Hon‟ble High Court vide order dated 24.05.2017.
The learned counsel for the Respondent Nos.2 to 3 summits that the order passed by the Hon'ble member (A) is apt in law. He further submits that the ICC (Internal Complaint Committee) was not constituted in view of the order dated 25.04.2017 of the Hon‟ble High Court but, in view of Section 6 of the Sexual Harassment of Women's at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred as an Act). He OA-977/2018 47 further adds that the allegation against the applicant in the present OA is covered under Section 2 and 3 of the Act. Besides, refers to the provisions of Section 14 of the Act to contend that if the impugned charge memorandum is interfered by this Tribunal the applicant may be liable for the penal provisions as under Section 14 of the Act. He further argues that under Section 19 of the Act certain duties have been cast on the employer and the Respondents No.1 to 3 have acted in furtherance of their such duties.
I have perused the pleadings on record considered the submissions made on behalf of the parties and the case laws referred to hereinabove. However, I am of the considered view that the issue involved in the present OA is not about truthfulness of the complain of sexual harassment or the duties cast on the employer and therefore there is no reason or justification to go into provisions of Sub Section 14 & 19 of the Act.
21. Learned Counsel appearing for the Respondent No.4 besides adopting the arguments advanced by the learned counsel for the Respondents No.2 and 3 argues that the allegation levelled against the applicant may not fall under the definition of sexual harassment as OA-977/2018 48 provided under Section 2 (n) of the Act. However, the same falls under the Section 3 (2)(iv) of the Act. Section 2(n) of the Act reads as under:-
"2(n) "sexual harassment" includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:-
(i) physical contact and advances: or
(ii) a demand or request for sexual favours, or
(iii) making sexually coloured remarks; or
(iv) showing pornography: or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;"
And Section 3 of the Act reads as under:-
"3. Prevention of sexual harassment-
(1) No woman shall be subjected to sexual harassment at any workplace.
(2) The following circumstances, among other circumstances, if it occurs, or is present in relation to or connected with any act or behavior of sexual harassment may amount to sexual harassment:-
(i) implied or explicit promise of preferential treatment in her employment;
or
(ii) implied or explicit threat of detrimental treatment in her employment; or.
(iii) implied or explicit threat about her present or future employment status, or.
(iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or.
OA-977/2018 49
v) humiliating treatment likely to affect her health or safety."
I have gone through the aforesaid provisions of the act and I am of the considered view that interference with her work or creating an intimidating or offensive or hostile work environment for her as provided under Section 3 (2)(iv) of the Act is required to be read harmoniously. It is already found hereinabove that no specific complaint of interference with her work or creating an intimidating or offensive or hostile work environment connected with any act or behavior of sexual harassment has been made by the Respondent No.4 against the applicant in the present OA. There is neither any reply nor any oral submission on behalf of the Respondent No.4.
22. There cannot be any quarrel that if allegations are such which fall under the provisions of Section 2 (n) or under Section 3 of the Act, Disciplinary Proceedings must be initiated. However, in the present case, as noted above there is no specific complaint of sexual harassment against the applicant in the OA. The complaint, if any, was dated 05.08.2013, which was admittedly compromised by the Respondent No.4 with OA-977/2018 50 Shri Prabhat Kumar Gupta subsequently or in the complaint dated 30.06.2015, which was inquired into by the committee consisting of Dr.Ojha and Dr.Biradar and therein only a passing reference was made about the applicant in the OA and that culminated into recommendations dated 06.08.2015, noted above and in none of the three complaints or in the writ petition before the Hon‟ble High Court any specific allegation of sexual harassment has been made against the applicant or any specific prayer has been made against him.
23. I may refer to an order/judgment dated 08.10.2014 of a Division Bench of this Tribunal at Ernakulam Bench in O.A.No.1188 of 2013, titled Mohanan Pallath vs. The Bharath Sanchar Nigam Ltd. & Others, reported in 2014 SCC OnLine CAT 2296, para 16 of which reads as under:-
"................Merely on account of the fact that he is a male, unpleasant words, if any, coming from the applicant can not be treated as having 'sexual over tones' unless they carry a definite nexus with sexual behaviour or sexual intention. The very idea behind the Vishaka judgment and the Act is to prevent the sexual prowess of the male employees from being used against the woman employees who are physically weaker. The social situation prevailing in India also operates in a manner disadvantageous to the women employees at work places. However, if harassment of women at work places to be made actionable under the Vishaka OA-977/2018 51 judgment and also under the Act, such act should have a definite and dominant nexus with sexual behaviour. We are unable to see any such sexually coloured act, conduct or words from the applicant either in Annexure A-6 complaint or in the Annexure A-8 inquiry report submitted by the Committee."
I am in respect-full agreement with such view of the Division Bench.
24. In the present case, the allegation in the Article of charge to the effect that the applicant has uttered against the Respondent No.4 "she does not know anything, 'nothing is clear to her', 'wo jhuth bolti hein', 'Directer had given me this activity and power to take action against you etc.etc' is taken as true on face of it, the same cannot be treated as 'sexual over tonnes' as there is nothing on record to show any definite nexus with sexual behaviour or sexual intention.
25. I have gone through the order passed by the Hon‟ble The Chairman in the matter and find that in para 8 of His Lordship‟s order, it is clearly recorded that the ground on which the charge Memorandum can be interfered by the Tribunal or Court are very limited, the first is where the charge Memorandum is issued by an authority not vested with the power and the second is where no misconduct can be discerned even if the OA-977/2018 52 contention of charge are taken as true. Only after perusing the article of charge, statement of imputation against the applicant and various complaints and her petition before the Hon‟ble High Court the Hon'ble Chairman has found the matter falling under the aforesaid 2nd category resulting into the OA being allowed by him. I have also gone through the dissenting order passed by the her Ladyship Hon‟ble Member (A) and find that without any finding about the article of charges, the complaints of Respondent No.4 which had been the base of the impugned charge memorandum and by merely recording the provisions of Section 2 (n) and 3 of the Act in para 6, it has been recorded in para 7 of the dissenting order that the subject matter of the complaint is squarely covered by the said Act. In para 14 and 15 of the dissenting order, the judgment of Hon'ble Apex Court in the case of Secretary, Ministry of Defence & Others vs. Prabhas Chandra Mirdha in Civil Appeal No.2333/2007 decided on 29.05.2012 has been extracted. I have gone through the judgment of Hon‟ble Apex Court in Prabhas Chandra Mirdha (supra) and find that in para 18 the Hon'ble Supreme Court has noticed as under:-
OA-977/2018 53 "18. In view of the above, while leaving the question of law open, we do not want to proceed with the appeal farther on merits."
26. Accordingly, the judgment of Hon‟ble Apex Court in Prabhas Chandra Mirdha (supra) does not prohibits the Courts or Tribunal to interfere in the matter of challenge to charge-sheet if on plain reading of the article of charges, statement of imputation and the complaint, which is a basis of such article of charges do not indicate any delinquency. I further find that in the case of Jagdish Baheti vs. High Court of M.P. In W.P.(C) No.3201/2015, decided on 18.03.2015 referred to in para 15 of the dissenting order clearly rules that in some rare and exceptional cases High Court can quash a charge-sheet or show cause notice, if it is found to be wholly without jurisdiction or for some other reason, if it is wholly illegal.
27. In view of the facts, discussions and the law referred to hereinabove, I respectfully agree with the order dated 13.11.2018 passed by Hon‟ble The Chairman and I respectfully do not agree with the dissenting order passed by Hon'ble Ms.Aradhana Johri, Member (A).
28. Accordingly, I allow the OA and set aside the charge memorandum dated 22.01.2018. However, it is OA-977/2018 54 left open to the Respondent No.4 to file complaint against the applicant, if she has any grievance against him giving details thereof and in that event, the Respondent No.1 to 3 are at liberty to take necessary action in accordance with law.
29. In the facts and circumstances, no order as to costs.
(R.N Singh) Member (J) Amit/-