Himachal Pradesh High Court
Police H.Q. Shimla) vs State Of Rajasthan And Others on 10 September, 2021
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
1
IN HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 10th DAY OF SEPTEMBER, 2021
BEFORE
.
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION No. 3318 of 2021
Between :-
PRAVEER KUMAR THAKUR,
S/O SH. BALBIR SINGH VERMA,
R/O HOUSE No. 235-B, 1st FLOOR,
SECTOR-3, NEW SHIMLA, H.P.
PRESENTLY WORKING AS
ADDL. SUPERINTENDENT OF POLICE,
(TEMPORARILY ATTACHED AT
POLICE H.Q. SHIMLA).
...PETITIONER
(BY MR. BIMAL GUPTA,
SENIOR ADVOCATE, WITH
MR. SATISH SHARMA, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS PRINCIPAL SECRETARY
(HOME) GOVERNMENT OF
HIMACHAL PRADESH, SHIMLA.
2. THE DIRECTOR GENERAL OF POLICE,
STATE OF H.P., POLICE H.Q.,
NIGAM VIHAR, SHIMLA.
3. THE CHAIRPERSON,
INTERNAL COMPLAINT COMMITTEE
ON SEXUAL HARASSMENT OF WOMEN
AT WORKPLACE POLICE H.Q., SHIMLA
4. MS. RANJANA CHAUHAN,
IPS (FATHER'S NAME NOT KNOWN TO
::: Downloaded on - 31/01/2022 23:03:29 :::CIS
2
THE PETITIONER) SUPERINTENDENT
OF POLICE, (LR)-CUM-CHAIRPERSON OF
INTERNAL COMPLAINT COMMITTEE,
POLICE H.Q. SHIMLA ON SEXUAL
.
HARASSMENT OF WOMEN AT
WORKPLACE, PHQ, SHIMLA-2 (HP).
...RESPONDENTS
(MS. RITTA GOSWAMI,
ADDITIONAL ADVOCATE GENERAL
WITH MS. SEEMA SHARMA,
DEPUTY ADVOCATE GENERAL,
FOR THE STATE)
RESERVED ON : 31 st AUGUST, 2021
DATE OF DECISION : 10th SEPTEMBER, 2021
WHETHER APPROVED FOR REPORTING ? YES
____________________________________________________
This petition coming on for pronouncement this day,
Hon'ble Ms. Justice Jyotsna Rewal Dua, passed the following
ORDER
The Internal Complaints Committee on sexual harassment of women at workplace has issued a memorandum to the petitioner on 28.05.2021 under Rule 14 of CCS(CCA) Rules 1965. Competence of the complaints committee to issue this memorandum is the main contention raised in this petition.
2. Facts leading to filing of the writ petition :
2(i) Petitioner qualified H.P. State Administrative Services Combined examination in the year 2008 and was ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 3 selected as Deputy Superintendent of Police (HPPS). He was thereafter promoted as an Additional Superintendent of Police in September, 2017.
.
2(ii) A complaint of sexual harassment at workplace was lodged against the petitioner on 11.05.2021. The Superintendent of Police Shimla sent the complaint to the Director General of Police, Himachal Pradesh-respondent No. 2. FIR No. 14 of 2021 was registered against the petitioner at Women Police Station Shimla on 13.05.2021 under Sections 354 and 354A(1)(ii) of the Indian Penal Code. Petitioner was granted anticipatory bail by the learned Sessions Judge Shimla on 03.06.2021.
2(iii) The complaint dated 11.05.2021 was also sent to the Internal Complaint Committee on Sexual Harassment of Women at Workplace-respondent No.3 (ICC). Respondent No. 3 issued a memo to the petitioner on 28.05.2021 under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules 1965 [in short the CCS(CCA) Rules 1965]. Petitioner was called upon to submit his reply to the memo within 10 days. Petitioner filed his reply on 04.06.2021, denying the charges and alleged violation of principles of natural justice. He stated that he had not been supplied copy of the complaint, copy of fact finding inquiry report, if any, etc. ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 4 2(iv) Respondent No. 3 sent a notice dated 08.06.2021, calling upon the petitioner to appear before it at Police Headquarter Shimla on 10.06.2021 for inquiry proceedings.
.
Petitioner appeared before respondent No. 3 and came to know that statements of two witnesses had already been recorded.
Petitioner was supposed to cross examine these witnesses, but he was under the impression that he had been called for personal hearing. Caught unaware, he requested for deferring the cross examination of these two witnesses. His request was accepted.
Later in the day, another notice was served upon him for appearance before the ICC on 11.06.2021. Petitioner appeared and submitted a representation for staying the proceedings pointing out the legal requirements, shortcomings and procedural lapses on part of ICC in conduct of the inquiry. He also raised an issue of denial of fair opportunity of defence. According to the petitioner, his representation went unconsidered, rather ICC examined one more witness on 11.06.2021. Unprepared, petitioner again took an adjournment for cross examination of this witness as well. Further proceedings were fixed for 14.06.2021.
2(v) Aggrieved with mode and manner of conduct of inquiry by the ICC, petitioner preferred instant writ petition with following reliefs :-::: Downloaded on - 31/01/2022 23:03:29 :::CIS 5
"i) That Memorandum dated 28.05.2021 (Annexure P-3) issued by respondent No. 4 as Chairperson of respondent No. 3 may kindly be held wrong, patently illegal and contrary .
to the provisions of the CCS (CCA) Rules 1965 and, therefore, may kindly be set aside.
ii) That the proceedings initiated by respondent No. 3 pursuant to issuance of Annexure P-3 may kindly be held wrong, illegal and violative of the procedure prescribed for initiation of inquiry in such cases and the same may kindly be quashed and set aside.
(iii) That in the alternative since the proceedings against the petitioner after issuance of Annexure P-3 are based upon same set of facts founded on complaint, allegations and is also a subject matter of FIR No. 14 of 2021, therefore, departmental proceedings initiated against the petitioner may kindly be kept in abeyance till the completion of the trial arising out of FIR No. 14 of 2021."
During hearing of the case, Mr. Bimal Gupta, learned Senior Counsel for the petitioner, submitted that he will not press relief No. (iii) at this stage in the instant petition and will raise it at an appropriate stage in appropriate proceedings. His submission is accepted.
3. Contentions:
Gist of the arguments advanced by Mr. Bimal Gupta, learned Senior Counsel for the petitioner is that the memorandum alongwith charges (Annexure P-3) dated 28.05.2021 has been ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 6 issued by ICC-respondent No. 3 under Rule 14 of the CCS(CCA) Rules, whereas respondent No. 3 has no authority to issue the memorandum under Rule 14 of the CCS(CCA) Rules. In terms of .
Rule 14, the charge sheet can be issued to him in accordance with law by the disciplinary authority. Respondent No. 3 is neither his disciplinary authority nor the competent authority to issue the memorandum under Rule 14. Inquiry is not being conducted in accordance with mandatory provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (in short Act of 2013) and the Rules framed thereunder.
Guidelines framed by Ministry of Personnel, Government of India in the Office Memorandum (in short O.M.) dated 16.07.2015 detailing the procedure for holding the inquiry in sexual harassment complaints are being violated. Circular dated 26.06.2019 issued in this regard by respondents-State is also being disregarded by the ICC. Inquiry is being conducted against the petitioner in a hot-haste manner and in violation of principles of natural justice. As per provisions of Rule 14 of the CCS(CCA) Rules, memo of charge sheet is required to be served alongwith article of charges, imputation in support of charges, documents relied upon and list of witnesses to be examined etc. All these documents were not supplied to the petitioner. The petitioner had ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 7 to make a specific request for the supply of these documents on
04.06.2021.
Ms. Seema Sharma, learned Deputy Advocate .
General, has defended the issuance of impugned memorandum dated 28.05.2021 by the ICC. The case of the respondents is that inquiry is being conducted as per Standard Operating Procedure No. 580 of 2017 (in short SOP), CCS(CA) Rules and the Act of 2013. While conducting the inquiry, O.M. dated 16.07.2015 and circular dated 26.06.2019 have also been followed. Respondent No.3, the Committee is competent to issue the memorandum dated 28.05.2021.
4. Legal History:
4(i) In (1997) 6 SCC 241, titled Vishaka and others Vs. State of Rajasthan and others, Hon'ble apex Court laid down various guidelines for protecting women from sexual harassment at workplace. Some of the guidelines pertained to taking disciplinary action against the accused employees. These were :-
"...........................................................
5. Disciplinary Action:
Where such conduct amounts to mis-conduct in employment as defined by the relevant service rules, ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 8 appropriate disciplinary action should be initiated by the employer in accordance with those rules.
6. Complaint Mechanism:
.
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organization for redressal of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
7. Complaints Committee:
The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any under pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them.::: Downloaded on - 31/01/2022 23:03:29 :::CIS 9
The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the .
Government department.
.............................................................."
The Complaints Committees were set-up for dealing with complaints of sexual harassment at workplace, pursuant to the judgment in Vishaka and others Vs. State of Rajasthan and others (1997) 6 SCC 241.
4(ii) The
r above
guidelines were followed
amendment to Rule 14 of the CCS(CCA) Rules, 1965 prescribing by an procedure for imposing penalties. On 10.07.2004, following proviso was inserted after Rule 14(2) :-
"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 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."::: Downloaded on - 31/01/2022 23:03:29 :::CIS 10
As per proviso to Rule 14(2) of the CCS (CCA) Rules, in case of complaints of sexual harassment, the Complaints Committee set-up in each department for inquiring .
into sexual harassment complaints shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of CCS(CCA) rules. Unless a separate procedure has been prescribed, the Complaints Committee shall hold the inquiry as far as practicable in accordance with the procedure laid down in CCS(CCA) Rules.
4(iii) The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 came into force on 22.04.2013. Gist of some provisions of this Act relevant to the case in hand are as under :-
i) An aggrieved woman may make in writing a complaint of sexual harassment at workplace to the internal/local committee, as the case may be, within three months from the date of the incident. For reasons to be recorded in writing, this time period can be extended by further three months on showing of sufficient cause.
[Section 9].
ii) Inquiry into the complaint shall be conducted in accordance with service rules applicable to the respondent (if he is an employee), where no rules exist, then in such manner as may be prescribed. [ Section 11(1) ] ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 11
iii) For the purpose of inquiry, the committee shall have same powers as are vested in a civil Court under the Code of Civil Procedure when trying a suit in respect of .
summoning, enforcing the attendance of any person, examining him on oath, requiring the discovery and production of document and any other matter which may be prescribed. [ Section 11(3) ]
iv) The inquiry is to be completed within a period of 90 days. [ Section 11(4) ]
v) On completion of inquiry, the Complaints Committee is to provide a report of its findings to the employer within a period of ten days. The report is also to be made available to the concerned parties. [ Section 13 (1) ]
vi) If the Complaints Committee concludes that allegations leveled in the complaint are proved, then it shall recommend to the employer to take action against respondent for sexual harassment as a misconduct in accordance with applicable service rules or where no service rules have been made, in such manner as may be prescribed. [ Section 13(3) ] In the instant case, complaint dated 11.05.2021 relating to sexual harassment was forwarded to the ICC. The ICC was to enquire into a matter where allegations had been levelled against an employee (petitioner), who was a gazetted State Police Service Officer (HPPS) governed by the CCS(CCA) Rules 1965 for disciplinary purposes. Section 11 of the Act of 2013 provides ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 12 that where the respondent is an employee, then the inquiry has to be conducted in accordance with Service Rules applicable to him.
5. The SOP No. 580 of 2017.
The respondents' case is that in the police department, SOP No. 580 of 2017 has been framed, providing mechanism for redressal of complaints of sexual harassment at workplace. The SOP as per its para 13 was valid for a period of three years from the date of issue. According to the respondents, its validity has been retrospectively extended on 01.06.2021 w.e.f. 06.01.2021 to 06.01.2023.
5(i) As per para 4 of the SOP, under the H.P. Police Act, 2007, there are four categories of police personnel governed by separate disciplinary provisions. Petitioner falls in the category of Gazetted State Police Service Officer, who for disciplinary purpose is governed by CCS(CCA) Rules. The relevant part of para 4 reads as under :-
"In Himachal Pradesh Police there are four categories of personnel as provided under Section 4 of Chapter-II of H.P. Police Act-2007-
(i) Non-Gazetted Police Officers Grade-II, comprising of Constables and Head Constables ;
(ii) x x x x x x x x x x x x x x x x x x x x x x
(iii) Gazetted State Police Service Officer; and
(iv) x xx x x x x x x x x x x x x x x x x x x x ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 13
(a) x x x x x x x x x x x x x x x x x x x x x x
(b) Personnel under category (iii) are governed as per provisions of Rule-14 of Central Civil Services .
(Classification, Control & Appeal) Rules, 1965 as well as relevant provisions of H.P. Police Act-2007 & CCS (Conduct) Rules.
(c) x x x x x x x x x x x x x x x x x x x x x x"
5(ii) Para 7(a) of the SOP gives the complaint mechanism. Clauses (x) and (xi) state that in the preliminary hearing, the committee should serve gist of the complaint to the alleged officer (in the form of articles of charge) and he should formally be asked whether he pleads guilty or otherwise. If the charges are denied, the complainant should be asked to produce her witnesses, if any, for recording their statements. These two clauses are extracted hereinbelow :-
"(x) In the preliminary hearing the Chairperson/Presiding Officer should serve gist of complaint to the alleged officer/official (in the form of articles of charge) and he should formally be asked whether he pleads guilty or otherwise.
(xi) If the charges are denied, the complainant should be asked to produce her witnesses, if any, before the Internal Complaints Committee for recording their statements."
Clause (xvii) of para 7(a) provides that after recording the defence and proceedings of cross examination of ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 14 defence witnesses, the committee is to give its findings. A copy of the findings of the complaints committee is to be provided to the respondent to enable him to file reply to the disciplinary authority.
.
The disciplinary authority will decide the matter as per procedure laid down in para 4. Clauses (xvii), (xviii) and (xix) of para 7(a) of the SOP are as under :-
""(xvii) the Committee to give the findings opinion after recording the defense and proceedings of cross examination of defense witnesses, documents etc., if any. (xviii) On receipt of the finding from Internal Complaints Committee, copy of the same should be provided to the respondent for his reply to the Disciplinary Authority.
(xix) On receipt of representation, if any, submitted by the respondent, the case should be finally decided by the competent authority as per procedure laid in rules/provisions quoted under para-4."
5(iii) Para 4 of the SOP (part of which has already been extracted hereinabove) ends as under :-
"The enquiry conducted by the Complaints Committee shall be treated as DE for awarding any punishment by the disciplinary authority, as per above provisions."
6. O.M. dated 16.07.2015 :
Both the parties have not denied the applicability of office memorandum dated 16.07.2015 issued by Government of ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 15 India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training. This memorandum outlines steps for conducting inquiry in complaints of sexual harassment.
.
6(i) This office memorandum says that keeping in view the proviso to Rule 14(2) of CCS(CCA) Rules, the ICC will be involved in two stages. First is at the stage of investigation and the second stage is where the ICC acts as an inquiring authority and conducts the inquiry as far as practicable as per Rule 14 of the CCS(CCA) Rules. Para 9 of the O.M. runs as follows :-
"In the light of the Proviso to the Rule 14(2) mentioned above, the Complaints Committee would normally be involved at two stages. The first stage is investigation already discussed in the preceding para. The second stage is when they act as Inquiring Authority.
It is necessary that the two roles are clearly understood and the inquiry is conducted as far as practicable as per Rule 14 of CCS (CCA) Rules, 1965. Failure to observe the procedure may result in the inquiry getting vitiated."
6(ii) First Stage of Involvement of ICC :-
Preliminary/fact finding inquiry/investigation- ICC conducts investigation to try to ascertain truth of allegations. This is done by collecting documents as well as recording statements of witnesses, if any, including the complainant. The investigation report at this stage assumes significance as the disciplinary ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 16 authority relies on this investigation report in case of issuance of charge sheet, for drafting the imputations as well as for evidence by which the charges are to be proved. Para 8 of the .
memorandum reads as under :-
As mentioned above, the complaints of sexual harassment are required to be handled by Complaints Committee. On receipt of a complaint, facts of the allegation are required to be verified. This is called preliminary enquiry/fact finding enquiry or investigation. The Complaints Committee conducts the investigation. They may then try to ascertain the truth of the allegations by collecting the documentary evidence as well as recording statements of any possible witnesses including the complainant. If it becomes necessary to issue a Charge Sheet, disciplinary authority relies on the investigation for drafting the imputations, as well as for evidence by which the charges are to be proved. Therefore, this is a very important part of the investigation."
6(iii) Disciplinary Authority gets into picture after the First Stage :-
The investigation report submitted by ICC as contemplated in para 8 is then sent to the disciplinary authority.
The disciplinary authority will examine the report as to whether a formal charge sheet needs to be issued to the respondent-official or not. As per Rule 14(3) of the CCS(CCA) Rules, charge sheet is to be drawn by or on behalf of the disciplinary authority. In case ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 17 charge sheet is issued to the officer, then he is to be given an opportunity to reply to the charge sheet. As per Rule 14(5) of the CCS(CCA) Rules, a decision to conduct the inquiry has to be .
taken after consideration of reply of the charged officer. This, as contemplated in para 12 of the office memorandum, is as under :-
"On receipt of the Investigation Report, the Disciplinary Authority should examine the report with a view to see as to whether a formal Charge Sheet needs to be issued to the Charged Officer. As per Rule 14(3), Charge Sheet is to be drawn by or on behalf of the Disciplinary Authority. In case the Disciplinary Authority decides on that course, the Charged Officer should be given an opportunity of replying to the Charge sheet. As per Rule 14(5), a decision on conducting the inquiry has to be taken after consideration of the reply of the charged officer."
6(iv) Second Stage of involvement of ICC:-
In case the charged officer denies the charges and his reply is not considered convincing, then charge sheet issued to him under CCS(CCA) Rules alongwith his reply is sent to the ICC for conducting formal inquiry into the matter. As per Section 11(3) of Act of 2013, the ICC comes into picture once again at this stage for holding formal inquiry. The ICC gets all the powers of the Civil Court to summon, enforce the attendance of any ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 18 person, examine him on oath, require discovery and production of documents etc. Relevant para 14 of the office memorandum is as under :-
.
"In case the Charged Officer denies the charges and his reply is not convincing, the Charge sheet alongwith his reply may be sent to the Complaints Committee for formal inquiry, and documents mentioned in Rule 14(6) will be forwarded to the Complainants Committee. As per Section 11(3) of the Act, for the purpose of making any inquiry, the Complaints Committee shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely :-
(a) summoning and enforcing the attendance of any person and examining him on oath ;
(b) requiring the discovery and production of documents; and
(c) any other matter which may be prescribed.
The Section 11(4) of the Act requires that the inquiry shall be completed within a period of ninety days."
6(v) The disciplinary authority in terms of Rule 14(5) (c) of CCS (CCA) Rules shall appoint the Presenting Officer. Charged officer is also entitled to defence assistant. Para 15 of the office memorandum in this regard is as follows :-
"The Disciplinary Authority shall also in terms of Rule 14(5) (c) appoint a Government servant as a Presenting Officer to present evidence on behalf of prosecution ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 19 before the Complaints Committee/Inquiring Authority. The listed documents are to be sent to the Presenting Officer. The Complaints Committee would, thereafter, .
summon the Presenting Officer and the Charged Officer.
As a first step, the charged officer would be formally asked as to whether he admits the charges. As mentioned above, in case of any clear and unconditional admission of any Article of Charge, no inquiry would be held in respect of that Article and the admission of the Charged Officer would be taken on record. The inquiry would be held thereafter, in respect of those charges which have not been admitted by the Charged Officer. The Charged Officer is also entitled to engage a Defence Assistant. The provisions relating to Defence Assistant are given in Rule 14(8)."
The other paras of O.M. give the subsequent procedure.
7. The Circular dated 29.06.2019 :
It will also be worth noticing a circular dated 26.06.2019 issued by the Department of Personnel Government of Himachal Pradesh. The circular was issued in sequel to the O.M. dated 16.07.2015 (referred to in para 6 above). The circular was issued to all the Heads of departments. The circular reiterates that ICC's role at first stage is to conduct a fact finding inquiry. If it is considered necessary to issue the charge sheet, then disciplinary authority shall issue the charge sheet under CCS(CCA) Rule 14(3) relying upon the fact finding report. After ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 20 considering the reply of the charged officer to the charge-sheet, the disciplinary authority shall take a call upon holding of formal inquiry against the employee. For conducting the formal inquiry, .
the matter alongwith all relevant documents is again sent to ICC which is the inquiring authority in terms of Act of 2013. For holding the formal inquiry, presenting officer is to be appointed.
Extracts from the circular are as follows :-
"(i) The internal Complaints Committee set up in each organization under the provisions of the Section 4(1) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 has a dual role. In the first stage, upon receipt of a complaint, it can conduct a preliminary enquiry/fact finding enquiry or investigation to verify the facts by collecting the documentary evidence as well as recording statements of any possible witness including the complainant, Under Section 11(4) of the Act, the enquiry shall be conducted within ninety days.
(ii) If it is felt necessary to issue a charge-sheet, then disciplinary authority, under Rule 14 (3), relies upon the investigation/preliminary/fact finding enquiry for drafting the imputations as well as for evidence by which the charges are proposed to be sustained.
(iii) The Charged Officer should be given an opportunity of replying to the charge-sheet. As per the Rule 14(5), the disciplinary authority after considering the reply of the ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 21 Charged Officer takes a decision whether a formal enquiry is to be conducted.
(iv) The Complaints Committee shall be deemed to the .
Inquiring Authority and enquiry into the charges framed shall be held, as far as practicable as per Rule 14 of the CCS (CCA) Rules, 1965.
(v) When allegations of bias are received against an Inquiring Authority, the enquiry/investigation shall be stayed till the disciplinary authority takes a decision on the allegations of bias.
(vi) Under Rule 14(5) (c), a Presenting Officer is appointed, the examination, cross-examination and re- examination of prosecution/defence witnesses is done.
Under Rule 14(18), General Examination of the Charged Officer is conducted and he is required to submit his written brief. The Complaints Committee is empowered to make its recommendations on specific points.
In this regard, attention is invited to the provisions contained in Rule-14(1) of CCS (CCA) Rules, 1965 which specifically stipulates that no order of imposition of any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made unless an inquiry is held in the manner provided in Rule-14 and Rule-15 otherwise the entire process would be vitiated, might entail unnecessary litigation and may not be legally tenable."
8. Observations :
8(i) Coming back to the facts of the case, as per reply filed by the respondents, the inquiry is being conducted against ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 22 the petitioner in consonance with the SOP, the O.M. dated 16.07.2015, the CCS (CCA) Rules and the Act of 2013. As per para 14 of the reply filed to the writ petition, a fact finding inquiry .
was conducted by the committee on receipt of complaint dated 11.05.2021. The ICC found substance in the allegations made.
Thereafter, the committee decided to proceed with formal inquiry on denial of charges by the petitioner. Relevant extract of the reply is as under :-
"14. That in view of submissions made in preceding paras, the averments made in this para are wrong hence denied completely. It is, however, submitted that after brief fact finding enquiry done by ICC wherein ICC examined 08 police personnel. Based on statements of the Police personnel examined, the Committee found that prima facie there was substance in the allegations made, as such, Committee decided to give gist of allegations to the petitioner and same was served to the petitioner on 28.05.2021 and was afforded an opportunity to spell out his side of the alleged incident. Allegations were denied by the petitioner. Then Committee decided to go ahead with the formal enquiry. That the petitioner made 3 representations dated 11.06.2021, 14.06.2021 and 18.06.2021 to the Committee seeking stay of the proceedings based on different grounds in this representations. The Committee deliberated on the representations and did not find any merit in the petitioner's plea in the light of the provisions of CCS ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 23 (CCA) Rules, 1965 and the provisions of the SOP issued for enquiry into complaints of sexual harassment at workplace. As such the committee decided to proceed .
further with the enquiry under the provisions of the SOP which as on date is valid. The Complainant was asked to furnish a list of witnesses and documents/evidence if any in support of allegations. On receipt of list of witnesses the Committee proceeded to record the statements of PWs in presence of petitioner. Further, petitioner prayed for some time to cross examine the witnesses and same was provided to the petitioner. Photocopies of statements of PWs as well as copy of complaint against him were also given to petitioner on 11.06.2021 to facilitate him to prepare defence. Hence the averments made in this para by the petitioner are devoid of any merits hence not tenable."
The reply states that :
a) On receipt of the complaint, a fact finding inquiry was conducted by the ICC. The Committee examined 8 police personnel.
b) The ICC found substance in the allegations made by the complainant.
c) The ICC decided to give gist of the allegations to the petitioner. The gist of the allegations was served upon the petitioner on 28.05.2021. On petitioner's denial of allegations, the ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 24 ICC decided to go ahead with formal inquiry against the petitioner as per SOP.
d) During formal inquiry, the ICC recorded the .
statements of PWs in presence of petitioner on 10.06.2021. At request of the petitioner, inquiry proceeding was adjourned to enable him to cross examine the PWs.
e) The ICC provided photocopy of the complaint dated 11.05.2021 and the statements of PWs to the petitioner on 11.06.2021 to facilitate him to prepare the defence.
f) The SOP does not provide for engagement of either the Presenting Officer or the Defence Assistant. Therefore, defence assistant cannot be provided to the petitioner.
8(ii) In the instant case, after completing the fact finding inquiry, the ICC found substance in the allegations levelled against the petitioner. The ICC decided to proceed with the formal inquiry. The decision to hold a formal inquiry against the petitioner was taken by the ICC on its own. Investigation/fact finding inquiry was not referred by it to the disciplinary authority. The disciplinary authority never came into picture at any stage. After investigation, the ICC on its own considered it appropriate to issue memorandum to the petitioner. The memorandum was issued under Rule 14 of the CCS(CCA) Rules. Relevant averments ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 25 made by the respondents in their reply in this regard are reproduced hereinafter :-
"Moreover, the memorandum dated 28.05.2021 has .
been served to the petitioner in compliance of Rule 14 of CCS (CCA) Rules. Thus the contention that due procedure is being followed in the enquiry is not tenable and hence denied."
8(iii) The ICC has no authority to issue the impugned memorandum under Rule 14 of the CCS(CCA) Rules. It is the pleaded case of the respondents that what was intended to be conducted by issuing memorandum dated 28.05.2021 was a formal inquiry. It will also be appropriate to extract hereinafter the impugned memorandum dated 28.05.2021 issued to the petitioner :-
"MEMORANDUM"
{Rule 14 of CCS (CCA) Rules } "The undersigned has received a complaint (in original) made by HC Richa Sharma, PS New Shimla, District Shimla addressed to SP/Shimla vide DGP office Letter No. DIV-I-(14)/2021-762 Dated 13.05.2021. The letter directs undersigned to enquire the matter and submit the report to the DGP/HP.
2. As per the complaint against Sh. Praveer Kumar Thakur, HPS, Addl. SP Shimla, temporarily attached at PHQ Shimla-2, there are charges of Sexual Harassment ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 26 at workplace and inappropriate undesirable behavior including physical contact and advances. As per the contents of the complaint and information and facts .
available therein, the gist of allegations are hereby served on Sh. Praveer Kumar Thakur, HPS, Addl. S.P. enclosed as Annexure-I to IV.
3. Sh. Praveer Kumar Thakur is directed to submit his reply to the allegations within 10 days of receipt of this memorandum in form of written statement of his defence and also with regard to his statement whether he admits or deny each allegation.
4. Sh. Praveer Kumar Thakur is further informed that if he does not submit his written statement of defence on or before the date specified in Para 3 above, or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of Rule 14 of the CCS (CCA) Rules, 1965 or the orders/directions issued in pursuance of the said rule, the inquiring Authority may hold the inquiry against him ex-
parte.
5. Attention of Sh. Praveer Kumar Thakur is invited to Rule 20 of the Central Civil Service (Conduct) Rules, 1964 under which no government servant shall bring or attempt to bring any political or outside influence to bear upon any superior authority to further his interest in respect of matters pertaining to his service under the Government. If any representation is received on this behalf from another person in respect of any matter dealt with in these proceedings, it will be presumed that Sh. Praveer Kumar Thakur is aware of such representation ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 27 and that it has been made at his instance and action will be taken against him for violation of rule 20 of the CCS (Conduct) Rules, 1964.
.
The receipt of the memorandum may be
acknowledged"
Four detailed Articles of charges are also part of the above memorandum.
8(iii) As per pleaded case of the respondents, the fact finding inquiry was conducted by the ICC on the complaint dated 11.05.2021. As per office memorandum dated 16.07.2015, issued by Government of India, which is also applicable to all the departments of the respondent-State as clarified by the respondent-State in the circular dated 26.06.2019, and also as per the provisions of Act of 2013, the committee, after completion of fact finding/ preliminary inquiry/investigation, if is of the opinion that the complaint has substance, then such investigation is to be sent to the disciplinary authority. In conducting the fact finding inquiry, the ICC recorded and examined statements of 8 police personnel. It, prima facie, found substance in the allegations levelled in the complaint. If that was so, then this would have been the end of first stage of the role of ICC. The ICC thereafter was required to send its fact finding report to the disciplinary authority. It was for the disciplinary authority to examine the fact finding report of the ICC and to decide whether to issue charge ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 28 sheet to the petitioner under Rule 14 of the CCS(CA) Rules or not. In case the disciplinary authority decided to issue the charge sheet to the petitioner, then the same was to be issued as per .
Rule 14(3) of CCS (CCA) Rules. Reply was to be called from the petitioner. Upon consideration of petitioner's reply, disciplinary authority was to take the final decision whether to proceed with formal inquiry against the petitioner or not. In case the disciplinary authority decided to proceed with formal inquiry, then the matter was to be again sent to the ICC as the ICC is the Inquiring Authority in complaints of sexual harassment as per provisions of Act of 2013 and the O.M. dated 16.07.2015. It is at this stage that the ICC comes into picture once again. This is the second stage mentioned in O.M. dated 16.07.2015. The provisions regarding appointment of Presenting Officer and the Defence Assistant also become applicable. This is the only interpretation possible on combined reading of the O.M. dated 16.07.2015, Act of 2013 and the CCS (CCA) Rules. The Internal Committee does not have the power to proceed with formal/regular inquiry on its own. It will be appropriate to refer to (2020) 13 SCC 56, titled Nisha Priya Bhatia Vs. Union of India and another, wherein following was observed in respect of fact finding inquiry by the ICC followed by conduct of regular inquiry :-
::: Downloaded on - 31/01/2022 23:03:29 :::CIS 29"95. Be that as it may, in our opinion, the petitioner seems to have confused two separate inquiries conducted under two separate dispensations as one .
cohesive process. The legal machinery to deal with the complaints of sexual harassment at workplace is well delineated by the enactment of The Sexual Harassment of Women at Workplace Act, 2013 (hereinafter "2013 Act") and the Rules framed thereunder. There can be no departure whatsoever from the procedure prescribed under the 2013 Act and Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (for short, "the 2013 Rules"), either in matters of complaint or of inquiry thereunder. The sanctity of such procedure stands undisputed. The inquiry under the 2013 Act is a separate inquiry of a fact-finding nature. Post the conduct of a fact-finding inquiry under the 2013 Act, the matter goes before the department for a departmental inquiry under the relevant departmental rules [CCS (CCA) Rules in the present case] and accordingly, action follows. The said departmental inquiry is in the nature of an in-house mechanism wherein the participants are restricted and concerns of locus are strict and precise. The ambit of such inquiry is strictly confined between the delinquent employee and the concerned department having due regard to confidentiality of the procedure. The two inquiries cannot be mixed up with each other and ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 30 similar procedural standards cannot be prescribed for both. In matters of departmental inquiries, prosecution, penalties, proceedings, action on inquiry report, .
appeals etc. in connection with the conduct of the government servants, the CCS (CCA) Rules operate as a self-contained code for any departmental action and unless an existing rule is challenged before this Court on permissible grounds, we think, it is unnecessary for this Court to dilate any further."
8(iv) The SOP cannot override either the CCS(CCA) Rules or the provisions of Act of 2013 or the Office Memorandum issued by Government of India on 16.05.2015, which is also applicable to the respondents in terms of Circular dated 26.06.2019. Under the Act, the inquiry by ICC is to be completed within a period of 90 days. Formal inquiry/regular inquiry can be conducted after the issuance of charge sheet by the disciplinary authority under Rule 14 of CCS (CCA) Rules. In case the procedure laid down in para 7(a) of the SOP is followed in terms of interpretation given by the respondents, then in case of State Gazetted Police Service Officer, the disciplinary authority will come into picture only after completion of formal inquiry by the ICC, which would be in absolute derogation to the provisions of not only the Act of 2013, but also CCS(CCA) Rules and the detailed guidelines dated 16.07.2015 issued by Government of ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 31 India. It is not the case of the respondents that they can conduct the inquiry against the petitioner into the complaint dehors the provisions of CCS(CCA) Rules, Act of 2013, the Office .
Memorandum dated 16.07.2015 and the Circular dated 26.06.2019. It is not and even otherwise also cannot be the case of the respondents that after conclusion of the present formal inquiry being conducted against the petitioner by the ICC, the matter will go to the disciplinary authority and that the disciplinary authority will then direct issuance of charge sheet to the petitioner followed by another regular departmental inquiry. This is because as per para 7(a)(xix) and para 4 of SOP, after conclusion of inquiry by the ICC, the matter goes to disciplinary authority for awarding punishment. A conjoint and holistic reading of the Act of 2013, the CCS(CCA) Rules, 1965, the O.M. dated 16.07.2015 issued by Government of India, the Circular dated 26.06.2019 issued by respondent-State and the SOP leads to only one conclusion that the ICC has no authority to issue the impugned memorandum dated 28.05.2021 to the petitioner. In case the ICC has not completed the fact finding inquiry, then it is entitled to complete the same but in accordance with law. However, in case the ICC has already concluded the fact finding inquiry against the ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 32 petitioner, then it is required to send the fact finding inquiry report to the disciplinary authority. It is for the disciplinary authority to examine the fact finding report to decide whether to issue charge .
sheet to the petitioner or not. It is the disciplinary authority which can issue the charge sheet to the petitioner under Rule 14 of CCS(CCA) Rules. After examining the reply of the petitioner to the charge sheet, it is for the disciplinary authority to decide whether to proceed with formal inquiry against the petitioner. The ICC will come into picture once again only if disciplinary authority decides to hold formal inquiry against the petitioner. If that course is adopted by the disciplinary authority, then the matter will be once again referred to the ICC which is the inquiring authority in terms of Act of 2013, CCS(CCA) Rules and the O.M. dated 16.07.2015. The ICC at this second stage of coming into picture will hold the inquiry as per provisions of CCS (CCA) Rules as the petitioner is a Gazetted State Police Service Officer governed by CCS (CCA) Rules, 1965 for disciplinary purposes.
In view of above discussion, it is held that the Internal Complaints Committee had no authority to issue the memorandum dated 28.05.2021 to the petitioner. This writ petition is allowed. The impugned memorandum dated 28.05.2021 (Annexure P-3) is quashed and set aside. It will be ::: Downloaded on - 31/01/2022 23:03:29 :::CIS 33 open for the respondents to proceed against the petitioner in accordance with law, keeping in view the observations made above. Pending applications, if any, also stand disposed off.
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10th September, 2021 (K) ( Jyotsna Rewal Dua )
Judge
r to
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