Central Administrative Tribunal - Delhi
S.A.A. Abbasi vs The Chairman on 2 July, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
New Delhi this the 2nd day of July, 2010
OA 3595/2009
With
OA 3587/2009
Honble Mr L.K. Joshi, Vice Chairman (A)
Honble Dr. Dharam Paul Sharma, Member (J)
OA 3595/2009
S.A.A. Abbasi,
Working as Regional Provident Fund Commissioner-I
Zonal Training Institute,
Faridabad
R/o 1123, Mantova, Mahagun Mansion,
Indirapuram, Ghaziabad-201010 (UP). Applicant
(By Advocate Shri Arun Bhardwaj )
VERSUS
1. The Chairman,
Central Board of Trustees,
Employees Provident Fund Organisation
Bhavishya Nidhi Bhawan, 14,
Bhikaji Cama Place, New Delhi-110016.
2. The Central Provident Fund Commissioner,
Employees Provident Fund Organization,
Bhavishya Nidhi Bhawan, 14,
Bhikaji Cama Place, New Delhi-16. Respondents
(By Advocate Shri H.K. Gangwani )
OA 3587/2009
S.A.A. Abbasi,
Working as Regional provision Fund Commissioner
Zonal Training Institute,
Faridabad
R/o 1123, Mantova, Mahagun Mansion,
Indirapuram, Ghaziabad-201010 (UP). Applicant
(By Advocate Shri Arun Bhardwaj )
VERSUS
1. The Chairman,
Central Board of Trustees,
Employees Provident Fund Organization
Shram Shakti Bhawan,
Rafi Ahmed Marg,
New Delhi.
2. The Central Provident Fund Commissioner,
Employees Provident Fund Organization,
Bhavishya Nidhi Bhawan, 14,
Bhikaji Cama Place, New Delhi-16. Respondents
(By Advocate Shri H.K. Gangwani )
O R D E R
Mr. L.K. Joshi, Vice Chairman (A) We are dealing with the two Original Applications (OAs) in this common order as the outcome of the OA number 3595/2009 would affect the decision in the OA number 3587/2009.
2. In OA number 3595/2009, challenge is to the report dated 19.04.2008 of the Committee set up to inquire into a complaint of sexual harassment by the Applicant on the basis of the complaint of Ms.Mridula Ghai, RPFC (II), order dated 20.05.2009 of the disciplinary authority imposing penalty of reduction to a lower stage in the time scale of pay by five stages for a period of five years with cumulative effect and the order dated 14.12.2009 of the appellate authority, dismissing the appeal preferred by the Applicant against the order of the disciplinary authority.
3. In OA number 3587/2009, the Applicant is assailing the order dated 4.12.2009 by which he has been reverted from the post of RPFC(I) ad hoc to the substantive post of RPFC(II), with immediate effect. The Applicant is seeking regularization in the post of RPFC-I from 2006, when the vacancy arose, or at least from the date the officer junior to him was regularized.
4. The facts, as may be necessary for adjudication of OA number 3595/2009, have been delineated hereafter. On 14.09.2006 the Applicant was given the charge of Regional Office, South Delhi of the Employees Provident Fund Organisation (EPFO) as Regional Provident Fund Commissioner (RPFC)-I. One Ms. Mridula Ghai was already working there as RPFC-II (Finance & Accounts) since May 2005. The Applicant, after assumption of charge in the aforesaid office, found several lapses and shortcomings in the work of Ms.Mridula Ghai, to which we shall advert in detail later in this order, and pulled her up and also complained against her to superior officers. A Memorandum was also issued to her on 9.03.2007 for unauthorisedly not attending the office. Ms.Mridula Ghai made a complaint dated 14.03.2007, the subject of which was mentioned as Harassment to the Central Provident Fund Commissioner (CPFC), complaining about the aforementioned Memorandum dated 9.03.2007, being sent to a sub-office at Laxmi Nagar, whereas earlier no Divisional Head had been asked to visit that sub-office, taking review meeting till late in the evening, in which she had to be present throughout, telling her subordinates not to follow her orders, humiliating her in the presence of her subordinates and using double-meaning words/phrases and passing personal comments. Additional CPFC was directed to investigate the alleged harassment of Ms. Mridula Ghai. Thereafter, Ms.Uma Mandal was asked to inquire into the complaint. She sent a notice dated 20.04.2007 to Ms.Mridula Ghai stating therein that she had been asked to inquire into the complaint made by her about gender harassment and that she (Ms.Mridula Ghai) should submit her written/oral deposition to her (Ms.Uma Mandal). Following this a Complaint Committee was constituted on 12.06.2007 to inquire into the complaint made by Ms. Mridula Ghai pertaining to sexual harassment by the Applicant. The Committee comprised Mrs. R. Hemavathy, RPFC-I as Chairperson and Ms. Uma Mandal and Mr. S.K. Singh, both RPFC-II as Members. The aforesaid order was modified on 20.06.2007, when Ms. Khadija Faruqui, advocate was also appointed as a member of the Committee. The Applicant gave a representation to the CPFC to inform him about terms of reference of the Committee. He was informed that the terms of reference had already been spelt out in the Office Order dated 12.06.2007, by which the first Complaint Committee was set up, as adverted to above, which, inter alia, mentioned that:
2.The Committee is required to investigate the above mentioned complaint by Ms. Mridula Ghai RPFC-II in a time bound manner and submit report by 20.06.2007. The Committee shall be at liberty to examine the witnesses and collect evidence from whichever source as deemed fit. The Committee gave its report on 9.04.2008 ( placed at pages 46-72 of the paper book) and came to the conclusion that the Applicant was guilty of harassing Ms. Mridula Ghai by the following acts:
a. Passing of sexually coloured remarks; and b. Demand for sexual favours It also held that the following allegations were not proved:
c. Showing pornography;
d. Physical advances and other unwelcome physical and non-verbal conduct of sexual nature. The copy of the report of the Committee was not supplied to the Applicant. The Applicant approached this Tribunal through OA number 1390/2009, seeking a direction that necessary documents should be supplied to him. The Tribunal by its order dated 21.05.2009 issued notice to the other side and directed the respondents therein not to pass any final order in the proceedings. The respondents, however, informed the Tribunal that final order had been passed on 20.05.2009, a day before the date when the Tribunal had directed not to pass any final order. The OA number 1390/2009 was dismissed on 9.09.2009 as withdrawn, with liberty to the Applicant to file an appeal, with directions for its disposal within six seeks from the date of filing the appeal. The appeal of the Applicant was rejected by order dated 4.12.2009.
5. It has been urged on behalf of the Applicant that the complainant Ms. Mridula Ghai, in the first place, complained against him, to avoid action being taken against herself for being extremely remiss in her work, which the Applicant found out after joining the Regional Office (Delhi South) as Officer-in-charge. He had called her explanation for the serious lacunae in her work and reported the matter to the superior officers also. It is stated that she submitted the balance sheet for the year 2005-06 to the headquarters without reconciliation of the cash books. She had failed to send demi official narrative reports also. It is averred that the Financial Adviser and Chief Accounts Officer had expressed serious displeasure about her functioning in the letter placed at Annex A-5. It has also been averred in paragraph 4.4. of the OA that the Applicant had found out that a huge amount of Rs.229 crore was dumped unaccounted in a dummy number without any attempts by the complainant for its reconciliation (Annex A-6). Further alleged misdemeanor by the complainant has been pointed out in paragraph 4.5 of the OA that she let an amount of Rs.299.56 crore remain idle in a bank account without investing it. It is pointed out that the headquarters of the EPFO, by its letter dated 11.06.2007 had proposed disciplinary proceedings against erring officials. The learned counsel for the Applicant would contend that it was in this background, while trouble was brewing for the complainant, that she made the complaint dated 14.03.2007, placed at Annex A-10, which is reproduced below:
To The Central Provident Fund Commissioner Employees Provident Fund Organisation, Head Office, Bhavishya Nidhi Bhawan, 14, Bhikaji Cama Place, New Delhi-110066.
Sub: Harassment Sir, This is to bring to your notice that I was down with fever from 27/02/07 to 01/03/07. I had informed the office on all the three days. I had spoken to Shri B.C. Ahuja, Assistant Account Officer (attached as P.A. to Regional Provident Fund Commissioner-1) over telephone number 26413658 on 27/02/07 and 28/02/07 who took the message and said that Regional P.F. Commissioner I was busy in some meeting. I called up Mr. Pramod Uniiyal Regional Providing Fund Commissioner-II on telephone number 26282819 and informed him also. Further I had called up the EDP Supervisor on telephone number 9873119978. I had also called up Shri A.K. Singh, Assistant Account Officer on telephone number 26224461. Most of the phone calls were made from the mobile number 9891340670. Further, on 01/03/07 I spoke to Regional Provident Fund Commissioner- I personally and told him about my sickness and that I was leaving for an official trip from 02/03/07 to 09/03/07 and would join office on 12/03/07. Additionally, I had sent a written application (The copy of receipt is attached for ready reference.) The Regional Provident Fund Commissioner- I has destroyed the application it seems, and he has taken action for absence without intimation. On 12/03/07 after attending office when I went home I received a letter to the effect asking me to immediately report for duty ( copy enclosed) As your good self is aware he had been harassing Mrs. Manisha Sinha also and subsequently she got transferred without completing her full tenure. I have also kept your good self informed. I can quote innumerable instances of harassment like being given Office notes to visit SRO Laxmi Nagar whereas no other divisional head has been sent to visit Laxmi Nagar, Further on many occasions he had been starting review meeting of accounts wing at 6 pm and had been carrying on till 8.30 pm. This sometimes was being done on a continuous basis.
I am totally disturbed with this latest development. He is trying to corner me. He gives targets to me and gives his own action plan to my Assistant Account Officers asking them to follow it and not to follow my instructions. A case in point is that ever since Ist of March hardly any account slips have been issued though I had got more than 6.5 lakhs issued in the last two months. This is due to his verbal instructions that only claims are settled so that I do not achieve the target of issuing further 3 lakh account slips in March, 2007. He humiliates me in front of my subordinates, uses double meaning words/phrases and passes personal comments. I am apprehensive of further damage being caused to me including spoiling of my ACR. I request your good self to kindly take cognizance of this and help me out before any further damage is done to my psyche or my career.
Yours sincerely Sd/-
New Delhi, dated 14/03/07 (MRIDULA GHAI )
Regional Provident Fund Commissioner-II (F&A) Delhi South.
It is strenuously urged that it was not even a complaint regarding sexual harassment, but complaint about administrative matters. It is urged that it was a strategic move on her part to deflect attention from the serious lapses committed by her.
6. It is contended that the Additional CPFC(HR) had investigated the complaint dated 14.03.2007. The report dated 23.03.2007 of the Additional CPFC has been placed at pages 338 to 342 of the paper book. The report, in its conclusion, exonerated the Applicant thus:
On careful analysis of the statements of the officials of the office it is established that RPFC-1 has been reviewing the performance of the office and starts meetings at 5.45 or 6 pm. The meetings last upto 7 p.m. It is also brought out by all the lady officers and PA to RPFC that he was reviewing the performance of the lady officers in the first instance so that they can leave the meeting at the earliest. It is also brought out from the statements of the officials that Ms. Ghai has participated in only one meeting which was closed at 6. 45 p.m. It is observed that RPFC-1 is a tough task master and in order to boost the performance of the officials he is conducting the review meetings. Ms. Ghai has participated only in one meeting which lasted upto 6.35 p.m. Regarding leave application of Ms. Ghai it is an established practice in all the offices of EPFO and particularly in the office of Nehru Place that officer proceeding on leave hands over the application to RPFC-1 personally or to the PA to the RPFC-1 instead of handing over the application in the receipt section of the office. Regarding using of the words Mathew ke saath aapne bahut aish kiya, it is a common phrase and no such sense of utter indecency brining the matter to such a level is borne out. Thereafter, another inquiry in the matter was entrusted to Ms. Uma Mandal, to whom Ms. Mridula Ghai gave another complaint on 15.05.2007, as mentioned in an undated note of the CPFC (pages 216-217) addressed to the Secretary, Ministry of Labour and Employment for submission to the Minister of State (MOS) for Labour and Employment. The learned counsel for the Applicant would contend that the copies of the complaints were never given to the Applicant. The Respondents EPFO constituted the Complaint Committee by orders dated 12.06.2007 and 20.06.2009. The committe did not disclose its terms of reference, in spite of the Applicants representations. Advertence was also made in the representation dated 31.07.2007, addressed to the CPFC, to the guidelines issued by the National Commission for Women in 1998 envisaging that complaint regarding sexual harassment should be preferred at the earliest point of time and in any case within 15 days of the date of occurrence of the incident and that the complaint should contain all the details concerning the alleged sexual harassment. Clause 12 of the code of conduct for the work place, as issued by the National Commission for Women (NCW) has been quoted in the representation and is reproduced below:
12.Conducing inquiry by the Complaints Committee:
(i) Any person aggrieved shall prefer a complaint before the complaints committee at the earliest point of time and in any case within 15 days from the date of occurrence of the alleged incident.
(ii) The complaint shall contain all the material and relevant details concerning the alleged sexual harassment including the names of the contravener and the complaint shall be addressed to the Complaint committee.
(iii) If the complainant feels that she can not disclose her identity for any particular reason the complainant shall address the complaint to the head of the organization and hand over the same in person or in a sealed cover. Upon receipt of such complaint the head of the organization shall retain the original complaint with himself and sent to the complaints committee a gist of the complaint containing all material and relevant details other than the names of the complainant and other details which might disclose the identity of the complainant.
The Applicant, it has been contended, was never given copies of the complaint and the list of witnesses. The Applicant was not invited to be present, when the depositions of the witnesses were recorded, thus denying him the opportunity to cross-examine them. Even the witnesses for the defence were never examined in his presence. Paragraph 4.24, 4.25 and 4.26 of the OA, containing averments to this effect, are reproduced below:
4.24.That the applicant does not know as to when did the Sexual Harassment Committee summon and examined the witnesses. The applicant therefore neither knows the names of witnesses examined and the statements made by them. The witnesses were not examined in the presence of applicant, applicant was not informed of the dates on which PWs would be examined before the Sexual Harassment Committee. The copies of statement of such PWs were also not provided to the applicant, despite requests. No opportunity to cross examine the witnesses was afforded to the applicant. Thus the entire procedure of Sexual Harassment Committee is vitiated and is illegal and of no effect. Principles of Natural Justice are an essential part of fundamental rights which have been violated at every step of enquiry.
4.25. However, on 04.07.2007, the applicant was summoned by the forth Committee and he was asked to explain certain queries. However, the applicant was never told about the contents of the complaint against him or about the contents of evidence against him nor were copies of such complaint or statements given to him. The applicant objected seriously to the manner of proceedings without giving him the relevant documents and also wanted to know the terms of reference of the Sexual Harassment Committee which were kept concealed.
4.26. That no proper opportunity to produce defence witnesses was afforded to the applicant. The Sexual Harassment Committee wanted the applicant to give in writing, the specific questions which he wanted the DWs to answer which were submitted. The applicant does not know what happened thereafter as the DWs were never examined in the presence of applicant. The questions put up to DWs if they were examined, are not known. The Sexual Harassment Committee thus did not examine any witness in the presence of applicant. Everything was concealed from applicant and statements were either not recorded at all or were recorded in an illegal manner. There is no proof that the statements, if any, were made by the witnesses or not. Such statements cannot be termed as evidence in the eyes of law and no reliance can be put on such statements and applicant cannot be punished on the basis of such inadmissible evidence material. Advertence has been made to paragraph 7 of the report of the Complaints Committee, which reads thus:
7.The Committee took note of the fact that no separate procedure has been prescribed for it for holding the inquiry and hence decided to dispense with the following procedures laid down under rule 10 of EPF Staff (Classification, Control & Appeal) Rules, 1971 taking into consideration the sensitivity of the issues concerned, confidentiality to be maintained and the protection/safety of the witnesses.
Issue of charge memorandum to the defendant.
Furnishing of a copy of the complaint to the defendant Examination-in-chief, Cross-examination and re-examination of the witnesses.
Furnishing of copies of the statements of the witnesses to anyone.
v. Supply of daily order sheets. The learned counsel would point to the reply to paragraph 4.24-4.26 of the OA of the Respondents- CPFO, which is extracted below:
4.24-4.26.The contents of these paragraphs are wrong and incorrect hence are disputed and denied. It is submitted that in terms of instructions contained in DOPT OM No. 11013/10/1997-Estt. (A) dt. 13.02.1998 and as per the Honble Supreme Court of India, the Complaints Committee shall investigate the complaint in the matter that is fair and just. The Committee accordingly decided the manner of conduct of inquiry to investigate the complaint. As no separate procedure has been defined for conducting such inquiry, and keeping in view the sensitivity of the issues concerned, confidentiality to be maintained and the protection/safety of the witnesses, the Committee decided to dispense with the requirement of issuing a formal charge memorandum and furnishing of a copy of the complaint/statement of witnesses/daily order sheets to the Applicant. The Rule 14(2) of the CCS (Classification, Control and Appeals) Rules, 1965 is reproduced below:-
Provided that where there is a complaint of sexual harassment within the meaning of Rule 3 C of the Central Civil Services (Conduct) Rules, 1964, the complaints committee established in each Ministry or Department or Office for inquiring into such complaints, shall be deemed to be inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaint Committee for holding the inquiry into the complaints of Sexual Harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules. The Respondents reply to paragraph 4.47 has also been adverted to:
With regard to the contents of this paragraph, it is submitted that the contents of this paragraph are admitted to the extent that keeping the sensitivity and confidentiality of the case, the Inquiry Committee decided to dispense with the requirement of issuing a formal charge memorandum and furnishing of a copy of the complaint/statement of witnesses/daily order sheets to the Applicant as per Vishakhas case. It is submitted that the Respondents have failed to give any satisfactory reply to the Applicants averment in paragraph 4.17 that copies of the complaints had not been given to the Applicant. It is argued with conviction that the Respondents have tried unnecessarily to attribute following of such procedure to the directions of the Honourable Supreme Court in Vishaka and Others Vs. State of Rajasthan and Others, JT 1997 (7) SC 384. It is vehemently contended that such procedure, as has been adopted by the complaints committee, has not been prescribed by the Honourable Supreme Court. It is submitted that the Honourable Supreme Court in Medha Kotwal Lele & Others Vs. UOI & Others arising out of WP (C) numbers 173-177/1999, decided on 26.04.2004 had decided that the complaints committee would be the inquiry authority, as prescribed in the CCS (CCA) Rules, 1965. The Employees Provident Fund (Classification, Control and Appeal) Rules, 1971 are in peri materia with the CCS (CCA) Rules, 1965. The Department of Personnel & Training (DOP&T) had clarified in its Office Memorandum number 11012/5/2001-Estt. (A), dated 1.07.2004 as follows:
Provided that where (there) is a complaint of sexual harassment within the meaning of Rule 3-C of the Central Civil Services (Conduct) Rules, 1964, the complaints committee established in each Ministry or Department or Office for inquiring into such complaints, shall be deemed to be the Inquiring Authority appointed by the Disciplinary Authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaint Committee for holding the inquiry into the complaints or sexual harassment, the inquiry as far as practical in accordance with the procedure laid down in these rules. Rule 3 (C) of the Central Civil Services (Conduct) Rules, 1964 is reproduced below:
{3-C. Prohibition of sexual harassment of working women (1). No Government servant shall indulge in any act of sexual harassment of any woman at her work place.
(2). Every Government servant who is in-charge of a work place shall take appropriate steps to prevent sexual harassment to any woman at such work place.
EXPLANATION.- For the purpose of this rule, sexual harassment includes such unwelcome sexually determined behaviour, whether directly or otherwise, as--
(a) physical contact and advances;
(b) demand or request for sexual favours;
(c) sexually coloured remarks;
(d) showing any pornography; or
(e) any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.} The Complaint Committee was bound to follow the procedure prescribed in Rule 14 of the CCS (CCA) Rules 1965 and could not have short-circuited the inquiry as it did by dispensing with procedures, which are the distilled essence of the noble principles of natural justice, contends the learned counsel. It is urged that the whole complaint is an afterthought and the Respondents have given an opportunity to the complainant to make allegations of sexual harassment against her, after she realized on the basis of the report dated 23.03.2007 of the Additional CPFC, that her complaints about administrative harassment would not cut much ice. The Applicant was kept in the dark about the nature of the complaint and witnesses were examined behind his back. Copies of the notes in file number C-11016/1/2009/SS-1 have been obtained by the Applicant under the Right to Information (RTI) Act, 2005 and placed on record. The report of the Complaints Committee has been processed in this file. The observations of the CPFC have been given in paragraph 4 of the note. The CPFC has also raised concern about the legality of the report. The comments of the CPFC are quoted below:
4. Observations of CPFC:-
4.1. The allegation in the case involves a sensitive issue of sexual harassment. The definition of sexual harassment of working women has been defined and incorporated in the CCS (Conduct) Rules, 1964 and a new Rule 3-C prohibits sexual harassment of working women at work place.
4.2. In the amended rules, it has been clarified that the Complaints Committee shall be deemed as the Inquiring Authority appointed by the Disciplinary Authority and it shall inquire into the complaints by holding an inquiry as far as practicable in accordance with the procedure laid down in the CCS (CCA) Rules, 1965.
4.3. As regards the incidence of sexual harassment, there are two complaints made by the complainant. The first application has been made on 14/03/2007 which does not involve any sexual connotations and are purely allegations of harassment of administrative nature. The second application has been submitted before the lady investigating officer vide application dated 15/05/2007 subsequently and later admitted by the Complaints Committee.
4.4. As regards the procedure for holding an inquiry under the rules, the Complaints Committee has conducted a detailed inquiry and has framed five articles of charges on which findings have been given. As seen from the records and the report, the articles of charges are basically drawn from the statement dated 15/05/2007 of the complainant, whereas the original application was made on 14/03/2007. As per the provisions of rule 14 of CCS (CCA) Rules, 1965 which is invoked to impose a major penalty, the procedure envisages a charge memorandum to be served to the Charged Officer so that opportunity is given to him to defend the charges. In this case having regard to the peculiar nature of proceedings, the Complaints Committee being the Inquiring authority has dispensed with many of the inherent attributes.
Thus, there is a question of legality of the inquiry which has given a findings on the charges of which the defendant had no prior notice. It is also further stems whether the principles of natural justice were followed or dispensed with.
4.5. The findings of the Complaints Committee are based on examination of witnesses of which the defendant had no prior intimation and whatever defence has been made it was made only during the course of the inquiry. The rules and procedure also envisage handing a copy of the inquiry report to the defendant after conclusion of the inquiry. (In this case, copy of the Inquiry Report has not been handed over to the defendant i.e. Shri S.A.A. Abbasi, RPFC-1). (emphasis added) This has been echoed by the Social Security Division of the Ministry of Labour and Employment. The paragraphs 5.1, 5.3, 5.4 and 5.6, which have specifically been pointed out by the learned counsel for the Applicant, are fully reproduced below:
5.1. As pointed out by the CPFC, it is observed that the proper procedure outlined in EPF Staff (CCA) Rules, 1971 for holding inquiry has been dispensed with by the Complaints Committee and the Officer concerned had not been given an opportunity to defend his case..
5.3 In the absence of any guidelines in the manner of conducting oral inquiry, the Committee should have either approached the CPFC or the Ministry for conducting oral inquiry for further action or should have followed the proper procedure as outlined in CCS (CCA) Rules, 1965 and EPF Staff (CCA) Rules, 1971 in conducting oral inquiry. The Committee itself should not frame their own guidelines without getting approved by the concerned authorities.
5.4. CPFC has pointed out that there is a question of legality of the inquiry which has given a findings on the charges of which the defendant had no prior notice. It also further stems whether the principles of natural justice were followed or dispensed with. This Division is also of the opinion that this inquiry without following the due procedure had denied the principle of natural justice.
5.6. In the instant case, imposition of any one of the penalties by the Disciplinary Authority may not have legal sanctity since there is no procedure for holding the inquiry has been prescribed and approved by the Competent Authority. Moreover, the Complaints Committee has also not followed the prescribed procedure as envisaged in the CCS (CCA) Rules, 1965 or EPF Staff (CCA) Rules, 1971. (emphasis added) The Social Security Division has further noted the proviso added below Rule 14 (2) of the CCS (CCA) Rules, 1965 following the judgment of the Supreme Court in Medha Kotwal Lele (supra). Paragraph 5 of the note dated 6.04.2009 reads thus:
5. As regards the procedure for holding the Inquiry under the Rules, it is stated that after the Honble Supreme Court gave its judgment, the Complaints Committee is deemed to be an Inquiring Authority for the purpose of CCS (Conduct) Rules, 1964 and the report of the Complaints Committee is deemed to be an Enquiry Report under CCS (CCA) Rules, 1965 where a proviso has been added below Rule 14 (2) which inter-alia states that Provided that where is a complaint of sexual harassment within the meaning of Rule 3-C of the CCS (Conduct) Rules, 1964, the Complaints Committee established in each Ministry or Department or Office for inquiring into such complaints, shall be deemed to be the Inquiring Authority appointed by the Disciplinary Authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules.
However, the Director, who recorded note dated 6.04.2009, adverted to above, further went on to record in paragraph 9 that:
9. In the light of clear provisions made in the rules for holding an inquiry, the Complaints Committee has conducted the detailed inquiry as far as practicable. The legality of the Inquiry as pointed out in note sent by the EPFO, therefore, cannot be questioned on technical grounds of not holding the inquiry strictly as per Rule 14 of the CCS (CCA) Rules, 1965, since, the DoPT in its guidelines has clearly dispensed with such requirement as a result of specific direction of the Honble Supreme Court. Directions were then given by the Secretary of the Ministry of Labour and Employment to obtain the advice of the Legal Adviser. The legal advice, however, completely skirted the issue by reproducing a paragraph of the Honourable Supreme Courts judgment, wherein there was not even a whisper about the issue raised in paragraph 9 of the Directors note, quoted above. In this background the file was submitted to the Minister for Labour and Employment. The entire record of the inquiry had been sealed by the Complaint Committee, stating it to be in the interest of confidentiality and directing that it should be opened only by the disciplinary authority. The learned counsel for the Applicant would contend that considering the totally non-speaking order of the disciplinary authority, it would be obvious that he (the disciplinary authority) had not seen the record of the case and based his order solely on the report of the Complaints Committee. The order of the Minister qua disciplinary authority reads thus:
I accept the findings of the Complaint Committee, which has held Shri S. A. A. Abbasi, RPFC-1, guilty of committing serious misconducts of sexual harassment at workplace. It is a fit case for imposition of major penalty of reduction to a lower stage in the time scale of pay by 5 stages for a period of 5 years with cumulative effect. Following the directions of this Tribunal, the Applicant submitted a detailed appeal, running into 19 pages, in which several grounds were raised. The learned counsel would contend that the appeal was disposed of without any application of mind whatsoever, in one sentence, as quoted below:
I have gone through the Appeal and relevant records, and find no merit to alter the penalty imposed by my predecessor considering the gravity of the misconduct of sexual harassment at workplace by Shri S.A.A. Abbasi, RPFC-1.
7. The learned counsel would point out that the complainant Ms. Mridula Ghai had also given yet another complaint on 3.05.2007, obtained under the RTI Act, 2005, addressed to the Financial Advisor and Chief Accounts Officer, which is about administrative matters and no charge of sexual harassment has been made ( pages 330-337 of the paper book). The argument is that the Applicant, deliberately, as a matter of well thought out strategy, concocted the charge of sexual harassment, when she was called by Ms. Uma Mandal for inquiring into her allegations. This complaint of 15.05.207 had not been made available to the Applicant, who could not, therefore, defend himself.
8. Reliance has been placed by the Applicant on the judicial precedent of Sandeep Khurana Vs. Delhi Transco Ltd & Ors., Writ Petition (Civil) number 7849/2006, decided by the Honourable Delhi High Court on 17.11.2006 and Prof. Bidyug Chakraborty Vs. Delhi University, Writ Petition (Civil) No.8226/2007, decided on 29.05.2009 (Delhi High Court) to buttress the argument that due procedures, observing the principles of natural justice have to be followed in cases of complaints of sexual harassment also. The facts in Sandeep Khurana (supra) would reveal that the petitioner Sandeep Khurana, and Vinita Tiwari, second respondent, were employees of the first respondent, Delhi Transco. On 1.11.2004, Vinita Tiwari made the following short report:
Today on 1.11.04 at 4.50 PM Sh. Sandeep Khurana misbehaved and scuffled with me causing bleeding injuries. Sir, this man has been making filthy telephone calls to me at my office and home thereby causing physical and phychological harassment to me. A counter complaint was made by the petitioner also on the same date. Vinita Tiwari then made another complaint to the General Manager on 5.11.2004 alleging that the physical assault of 1.11.2004 was an act of sexual harassment. She asked for action against Sandeep Khurana. One Sh. M.K. Gupta was asked to make an inquiry in the matter. Said Sh. Gupta gave a report on 11.11.2004, holding it not to be a case of sexual harassment. The first Respondent then constituted a Complaint Committee, comprising four persons, on 18.11.2004. Copy of this order was not sent to the petitioner. A notice was given to the petitioner on 24.11.2004, but copy of any complaint or any statement of charge was not given to him. No written reply of the complaint of the second respondent was taken from the petitioner. The Committee examined witnesses, but no opportunity for cross-examination was given. The Committee returned a finding in December 2004, holding that the incident of 1.11.2004 was not an incident of sexual harassment. Following the report a notice was given to the petitioner as well as the second Respondent to show cause, as to why action should not be taken against them for breaching the discipline of the office. The second Respondent was also asked to explain why action should not be taken against her for making false complaint of sexual harassment against the petitioner. Vinita Tiwari again represented on 19.06.2005 that she had been subjected to sexual harassment by the petitioner and that she was not satisfied with the inquiry by the Committee. The first Respondent placed the matter before the Secretary (Services), Delhi Administration, for resolution of the matter. The Secretary (Services) of the Government of NCT of Delhi forwarded the same to the Chairperson, Delhi Commission for Woman for taking action in the matter. The matter was taken up by the State Complaints Committee, which summoned the petitioner on 28.09.2005. The said Committee then examined the petitioner and the complainant, the second respondent, as well as other officials of the first respondent, Chairperson of the Departmental Complaints Committee, as well as the two eye witnesses of the incident. The Committee then held that the petitioner had committed an act of sexual harassment vis-`-vis Vinita Tiwari. A copy of the Committees report dated 13.01.206 was sent to the petitioner for his representation. The petitioner was awarded a punishment of removal from service. The Honourable Delhi High Court framed the question, whether in view of the procedure followed by the State Complaints Committee, which was quite at variance with the procedure prescribed in Rule 14 of the CCS (CCA) Rules, 1965, the petitioner could be removed from service. The observations of the Honourable Delhi High Court in paragraphs 17, 28, 30 and 33 are reproduced below:
17. Admittedly this procedure has not been followed. The charges were not framed nor was any memorandum prepared in support of each article of charge. The petitioner was not given list of witnesses to be examined in the inquiry conducted either by the Departmental Complaints Committee or by the State Complaints Committee. Admittedly, since the procedure as provided in Rule 14 has not been followed there was no occasion for the petitioner to seek the assistance of any Government servant. Nor were the witnesses offered for cross-examination of the petitioner and there was no occasion for the petitioner to decline any such offer for cross-examination of witnesses. Thus, the entire procedure given in Rule 14 of CCS (CCA) Rules has given a complete go by.
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28. These submissions of the respondents are not at all acceptable. Respondent No. 1 has totally ignored the Rules. Even when the Departmental Complaints Committee was asked to enquire into the matter it was perhaps not contemplated to be an inquiry under the CCS (CCA) Rules. Nor was it being looked upon as an inquiry contemplated under the Rules by the petitioner or by respondent No.2. No one thought it necessary to ask the petitioner to submit a written reply to the allegations, or to cross-examine the witnesses of respondent no. 2 or to present his own witness. There was no occasion for the petitioner to seek any assistance of a co-worker during the inquiry because no one looked upon the proceedings as if they were proceedings for imposing the major penalty.
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30. When the rules are amended to say that the Complaints Committee as envisaged in the Vishakas case (supra) would be deemed to be Inquiry Authority for the purpose of CCS (CCA) Rules it is imperative that the Complaints Committee proceeds according to CCS Rules and in the manner in which an Inquiry Authority conducts its proceedings under the said Rules. The Supreme Court never meant that the Complaint Committees which were to function as Inquiry Authority under the CCS (CCA) Rules could return a finding of guilt against a Government servant without ever adopting the procedure of Rule 14 ibid, i.e., giving him a chargesheet, a memorandum delineating the allegations on which the charges are framed along with other articles like list of witnesses and the documents relied upon and then proceeding in the manner prescribed under Rule 14 of ibid. The responsibility of the Complaints Committee, by virtue of the judgment in Medha Kotwal Lele (supra) case, has immensely increased as it is now no more a fact finding Committee. It has been converted into an Inquiring Authority and, therefore, has to follow the procedure prescribed by Rule 14. The action taken cannot be supported on the plea that although Rules are ignored the principles of natural justice has been followed.
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33. Thus, to hold an inquiry is a mandatory provision. It is further mandatory that the inquiry should be held, as far as may be possible, in the manner provided by Rule 14. The entire procedure laid down by Rules or by any law cannot be altogether by-passed on the belief that principles of natural justice has been followed. In the case of State Bank of Patiala and Ors. Vs. S.K. Sharma, (1996) 3 SCC 364 the Supreme Court considered the effect of violation of procedure laid down for imposition of major penalty. It was observed that substantial compliance with the provisions will have to be made although for minor violations it could be examined whether principles of natural justice have been followed. It observed that there may be certain procedural provisions which are of a fundamental character whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. Taking an example of a rule providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead evidence in his defence and if such an opportunity has not been given, the Supreme Court held, the prejudice is self-evident and no proof of prejudice, as such, need to be called for in such a case. Further it held that in case the procedural provision is not mandatory the complaint or violation has to be examined from the stand point of substantive compliance but when the procedural provision violated is of a mandatory character it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest and if it is found to be former then it must be seen whether the delinquent officer has waived the said requirement. If it is found that the delinquent officer or employee has not waived it then the Court of Tribunal should make appropriate direction keeping in mind the relevant rule, which in the example was the approach adopted by the Constitution Bench in Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727. The respondent No.1 in this case has violated the mandatory provision of holding an inquiry as provided in Rule 14. No further proof of prejudice is needed to hold the impugned action bad. (emphasis added) In Prof. Bidyug Chakraborty (supra), in a case of complaint of sexual harassment, the appellant was debarred from holding any administrative post in the University for three years and warning was also communicated to him. The observations of the Honourable Delhi High Court in paragraphs 14, 15 and 17 are quoted below. The appeal was allowed:
14. As noted earlier, no opportunity was given to the petitioner for verbal cross examination of the complainant. A perusal of the inquiry report shows that the committee informed the petitioner that he could cross examine the complainant by giving written questions to the committee. In our opinion, mere permission to give written questions to the committee for cross examination of the complainant does not fulfil the legal requirement on the part of the Inquiring Authority, to give opportunity to the delinquent to cross examine her. Cross examination by giving written questions to the inquiring authority can never be as effective as verbal cross examination and cannot be its proper substitute. While putting questions to a witness the examiner does not know what answer the witness would give to the questions put to him/her. It is, therefore, not possible for him to formulate the next question without taking consideration the answer given by the witness. The answer given by the witness to one question may lead to further questions from the examiner on the same line, in order to elicit truth from the witness and to impeach his/her trustworthiness. Moreover, asking the petitioner to give written questions for cross examination was confined in respect of the complainant alone. No opportunity was given to the petitioner even to give written questions for cross examination of other witnesses examined by the committee. It was imperative on the part of the Inquiring Authority to give opportunity to the petitioner for her cross examination not only of the complainant but also of the other witnesses examined by it. Denial of opportunity to cross examine the complainant and other witnesses examined by the committee constitutes gross violation of principles of natural justice.
15. Rule 14 (16) of CCS/CCA rules mandates the Disciplinary Authority to ask the delinquent to state his defence which is to be recorded unless it is a written statement. Clause 17 of this rule requires the Inquiring Authority to then call upon the delinquent to produce his evidence. He may, if he chooses so, examine himself in his defence. In the present case, though at the time of serving charge sheet upon the petitioner, the committee asked him to give list of witnesses whom he wanted to be examined by the committee, no such opportunity was given to him after the committee had examined the complainant and other witnesses in support of the complaint. The committee was required not only to give an opportunity to the petitioner to produce the witnesses but those witnesses were to be cross examined by the petitioner and not by the committee, though, it would have been open to the committee to examine them after they had been examined by the petitioner and had also been subjected to cross examination.
. . .
17. For the reasons given in the preceding paragraphs, we are of the view that the inquiry against the petitioner was conducted in gross violation of the principles of natural justice as neither the petitioner was given an opportunity to cross examine the complainant and other witnesses nor was he asked to state his defence and produce witnesses in his defence. The findings recorded by the Apex Committee, therefore, got vitiated on this account alone. Disciplinary action taken against the petitioner on the basis of the findings recorded in an inquiry which was conducted in gross violation of principles of natural justice cannot be sustained. Yet, another reason why the disciplinary action taken against the petitioner cannot be maintained is that neither annexures/appendices to the inquiry report were supplied to him nor was he given an opportunity to make representation against the findings recorded by the Apex Committee. (emphasis added)
9. The Respondent, per contra, would contest the cause of the Applicant. It is contended that the Additional CPFC had not entirely exonerated the Applicant in his inquiry. He had also recorded the complainants plea that she could not reveal the words/phrases used by the Applicant or the personal comments made by him to her and would be able to disclose it to only another female officer. It was for this reason that an inquiry had to be conducted by Mrs. Uma Mandal. The Complaint Committee was free to adopt its procedure, as no guidelines were given to it, as has been recorded by the Chairperson of the Committee in her letter dated 19.04.208, forwarding the complaint to the CPFC. It is stated in the letter that :
ii. No guidelines or procedure to be followed for the inquiry were available to the Committee. The Applicant was given ample opportunity to submit his defence brief to the Committee. It is stated that all these are annexed to the inquiry report as follows:
Title Page Nos. Remarks Annexure-2 4.7.2007 (six pages) 19.9.2007 (eighteen pages) 20.9.2007 ( two pages) 21.9.2007 (One page) 1to 27 Sealed Defence brief dated 26.11.2007 ( 1 to 53 pages) & (Annexures A to MMM) 1 to 197 Defence brief dated 15.12.2007 ( 1 to 3 pages) & (Annexures NNN-1 to SSS) 1 to 13 In Addition, it is argued that the Applicant also sent five letters to the Committee, which were also annexed to the inquiry report. The learned counsel for the Respondents would contend that the Complaints Committee has noted in its report that the guidelines as enunciated in Vishaka case (supra) by the Honourable Supreme Court have been followed in the inquiry. The learned counsel would point to the following observations of the Honourable Supreme Court in the Vishaka (supra) case:
In particular it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have option to seek transfer of the perpetrator or their own transfer. and .7 Complaints Committee:
The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee a special counselor or other support service, including the maintenance of confidentiality. It is urged that maintenance of confidentiality was the main consideration before the committee to adopt the particular procedure. He would contend that the complaints Committee was not bound to follow the procedure prescribed in Rule 14 because the said Rule has to be followed only as far as practicable. The Committee did not give the name of the witnesses for their protection and for maintaining confidentiality, as recorded in paragraph 8 of the inquiry report.
10. The learned counsel also adverted to the statements of witnesses to show that there was a strong probability of the Applicants guilt. However, we are not going into this aspect because we are not going into the merits of the case.
11. It is stated that the Applicant knew the allegations against as would be clear from his defence statement, as quoted below:
iii. My request to inform me the allegations leveled against me was turned down by the Honble member on the ground of maintenance of confidentiality. The allegations were told to me on September 20th, 2007 that is after two and half months of Ist proceeding. Had the allegations were informed me on July 4th, 2007, enquiry proceeding would not have affected adversely in any manner. Then what was the intention of the Honble member in hiding the allegations?. This discloses the mindset of the Honble member. 7.2.3 i. It has been alleged that the complainant was subjected to following acts of Sexual Harassment by me immediately after my joining at Nehru Place Office. Do the allegations appear to be true on their face, in view of their variety and grave nature?
*Sexually coloured remarks;
*Showing pornography;
*Demand for sexual favours;
*Physical advances;
*Other unwelcome physical, verbal, non-verbal conduct of sexual nature;
*Administrative harassment following frustration of the above mentioned acts;
*Mental harassment caused owing to a hostile environment at work place It may be seen that nothing has been left that comes under the definition. It is stated that the names of witnesses were known to the Applicant, as mentioned by him in paragraph 7.2.4 of his statement of defence. The learned counsel would also contend that Sandeep Khurana (supra) and Prof. Bidyug Chakraborty (supra) cases are distinguishable in various details and, therefore, would not apply to the instant case. The learned counsel has also placed reliance on State Bank of Patiala and Ors. Vs. S.K. Sharma, (1996) 3 SCC 364 to buttress the argument that not providing the statements of witness and documents to the delinquent would not vitiate the proceedings. The learned counsel has also relied on the judgement in Canara Bank and ors. Vs. Shri Debasis Das and ors., JT 2003 (3) SC 183 to argue that the Tribunal should consider whether any prejudice has been caused to the delinquent officer by the procedure followed in an inquiry. The order of punishment should not be mechanically set aside on the ground that the report of inquiry was not given to the Applicant. Reliance in this context has also been placed on Managing Director, ECIL Vs. B. Karunakar, (1993) 4 SCC 727.
12. We have given our utmost consideration to the rival contentions and have minutely gone through the records placed before us with the assistance of the learned counsel for both parties.
13. It is clear from the facts, as narrated hereinabove that the Applicant was kept absolutely in the dark about the complaint made by Ms. Mridula Ghai against him and the evidence, which came on record on the basis of deposition of various witnesses examined by the Complaints Committee, was also not disclosed to him. It would not be merely sufficient, as argued by the learned counsel for the Respondents, to generally inform the Applicant during the course of the inquiry about the nature of inquiry against him and the allegations made by the complainant. The charged officer needs to be informed about the nature of the charge against him before the commencement of the inquiry so that he could adequately defend himself. The right to know the statements of witnesses and the right to cross-examine them is of fundamental importance in the conduct of disciplinary proceedings. It is difficult to understand how the Committee expected the Applicant to defend himself without giving him any idea about the specific allegations made against him and without informing him about the evidence, which had come on record against him on the basis of deposition of witnesses, let alone to cross-examine them. It is almost akin to putting blindfold on a persons eye and ask him to get out of a maze. The issue has been made luminously clear by the Honourable Delhi High Court in Sandeep Khurana and Prof. Bidyug Chakraborty (supra). We are unable to agree with the learned counsel for the Respondents that the ratio set out in these judgements would not apply to the instant case because of the differences in the facts of the case. The basic issues in Sandeep Khurana (supra) and Prof. Bidyug Chakraborty (supra) are in essence the same as in the instant case. There are bound to be minor differences in details, which does not mean that a case would be so distinguished from the other as to become inapplicable. We are of the considered opinion that both the above cited cases fully support the contention of the Applicant that the inquiry proceedings are completely vitiated because the prescribed procedure has been given a complete go by and principles of natural justice have been totally violated. The argument that the Applicant was given several opportunities to give his defence brief and that he wrote several letters to the Committee, have no relevance whatsoever in this context. The disciplinary authority has not applied his mind and without considering the defence of the Applicant or even without going into the details of the factual aspects of the case, has passed a totally non-speaking order. The same would apply to the appellate order also. On the other hand, the judgements cited by the learned counsel for the Respondents, which we have perused carefully have no relevance in the instant case. The Honourable Supreme Court itself has observed in paragraph 33 (3) of the judgement in State Bank of Patiala (supra) that the complaint of violation of procedural provisions should be examined from the point of view of prejudice to see whether such violation has prejudiced the delinquent employee in defending himself properly and effectively. It is further observed that there are certain procedural provisions, which are of fundamental character and whose violation is by itself proof of prejudice. In such cases, the Court/ Tribunal may not even ask for the proof of prejudice. In the instant case, every provision provided in Rule 14 of the CCS (CCA) Rules has been flouted. The Applicant has been completely deprived of any chance of defending himself by not giving him copy of the complaint or even the gist of the complaint before initiating the inquiry, not allowing him even an access to the statement of witnesses to say nothing of cross-examining them and then not giving him a copy of the inquiry report. Prejudice is writ large on the face of the record. In Canara Bank (supra), the Honourable Supreme Court itself has observed that the particular rule of natural justice, which is implied in a particular case would depend to a great extent on the facts and circumstances of that case and the framework of the incident under which the inquiry is held. The Honourable Court has emphasized that even an administrative order, which involves civil consequences must be consistent with the rules of natural justice. In the light of facts and circumstances of this case there cannot be any gainsaying that the principles of natural justice have been seriously violated in the instant case.
14. For the reasons mentioned above and on the basis of above analysis, the OA is allowed and the impugned orders placed at Annex A-1, A-2 and A-3 are quashed and set aside. The Applicant would be eligible for all consequential benefits, as if no punishment was given to him. If as a consequence, subject to fitness, without any consideration of punishment, the Applicant is found fit for regularization as RPFC Grade-I, he should be so regularized from the date his immediate junior was regularized. For this purpose, if necessary, a review meeting of the screening committee may be held within eight weeks of the receipt of a certified copy of this order. However, if the recommendations of the screening committee or the DPC, as the case may be, which met on 21.05.2009 have been kept in sealed cover, action for opening that sealed cover would be taken and if the Applicant had been found fit, he would be regularized within eight weeks of the receipt of a certified copy of this order with effect from the date his immediate junior was regularized. With these observations, the OA No.3587/2009 is also allowed. There will be no order as to costs.
15. A copy of this order may be placed in each of the OAs.
(Dr. Dharam Paul Sharma ) ( L.K. Joshi) Member (J) Vice Chairman (A) sk