Central Administrative Tribunal - Delhi
Dr. S.K. Das vs Union Of India Through on 15 July, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH T.A. No. 120/2013 [Writ Petition No.(Civil) 8466/2008] Reserved On:09.07.2014 Pronounced on:15.07.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (J) Dr. S.K. Das S/o Late Shri Lakshmi Narayan Das R/o Flat No.4, DDA, SFS Flats, Sector-1, Pocket-1, Dwarka, New Delhi. Applicant By Advocate: Shri Kumar Parimal. Versus 1. Union of India through Its Secretary, Department of Chemical & Petrochemical, Ministry of Chemical & Fertilizers, Shastri Bhawan, A Wing, New Delhi-110001. 2. Institute of Pesticide Formulation Technology, Through its Chairman, Under the Department of Chemical & Petrochemical, Ministry of Chemical & Fertilizers, Shastri Bhawan, A Wing, New Delhi-110001. .Respondents By Advocate: Shri Rajinder Nischal. ORDER
Honble Mr. G. George Paracken, Member (J) This case was filed originally before the Honble High Court of Delhi and it was registered as Writ Petition ( C) No.8466/2006. The challenge in the Writ Petition was against the report of the Enquiry Committee dated 02.04.2007 and the Disciplinary Authoritys order dated 04.07.2008 imposing the penalty of dismissal from service upon the Petitioner with immediate effect as modified by the Appellate Authoritys order dated 25.08.2008 reducing the penalty of reduction to a lower stage in the time scale of pay. Later on, the Petitioner being the employee of Respondent No.2, i.e., the Institute of Pesticide Formulation Technology (IPFT for short), an organization notified under Section 14 (2) of the Central Administrative Tribunals Act, 1985 and in view of the judgment of the Supreme Court in the case of L. Chandra Kumar Vs. Union of India and Others 1997 (3) SCC 261 wherein it has been held that this Tribunal is the court of first instance, the High Court, vide its order dated 23.10.2013, transferred this case to this Tribunal for adjudication. Accordingly, it has been registered as TA No.120/2013.
2. The brief matrix of the case is that the Applicant while working as Chief Analytical in IPFT under the Department of Chemicals and Petrochemicals, Ministry of Chemicals and Fertilizers, a sexual harassment complaint was made against him on 06.02.2003 by Dr. (Mrs.) D. Sanyal, Specialist, Analytical Division. The Respondents constituted a Complaint Committee on 21.11.2003 consisting of Ms. Veenu Gupta, Chairperson, Shri Anurag Saxena, Member and Ms. Anuvinda Varkery, Member (Representative from NGO) and Ms. Kailash Prasad, Member. The Committee met on 13.02.2003, 20.03.2003, 09.05.2003, 03.06.2003 and 09.09.2003 and conducted the hearings. As Ms. Kailash Prasad was on leave, she was not present in those meetings. As directed by the Committee, the Applicant submitted his representation dated 16.03.2003 to it denying the allegations made by Dr. Sanyal. He submitted that all the allegations against him were false and fabricated and have been leveled against him for retaliatory action for covering up administrative and financial lapses on the part of Dr. Sanyal in performing her duties. A copy of the reply was given to Dr. Sanyal by the Committee. She has given a list of the persons whom she wanted to be present before the Committee as witnesses. They, were Dr. D. Sengupta, Director, IPFT, Shri Tirathraj Yadav, Lab. Attendant, Analytical Division and Shri A.K. Roy, retired employee of HIL. The Committee called them before it on 09.05.2002. Shri Roy in his written statement has submitted that all the three complaints made by Dr. Sanyal were after his retirement and he was not an eye witness to any of the incidents but he was not present before the Committee. Shri Roy. Shri Tirat Raj Yadav appeared before the Committee and made his statement and it was recorded. Dr. D. Sengupta was also heard by the Committee and he was asked to submit his written statement. The Committee has finally, vide its report dated 21.11.2003, held that the remarks made by the Applicant fall under the category sexually coloured remarks and held that a prima facie case was made out which needs to be enquired into greater details as per departmental rules. But the Disciplinary Authority, i.e., the Director of IPFT, vide its order dated 03/08/2004, held that he was convinced that no further investigation was necessary in the matter and imposed the penalty of dismissal from service upon the Applicant with immediate effect. However, the Appellate Authority, which is the Governing Body of IPFT, in its 16th meeting held on 11.01.2005, set aside the aforesaid dismissal order as the due process and the procedure prescribed under CCS (CCA) Rules, 1965 have not been followed. Accordingly, Appellate Authority ordered to start the disciplinary proceedings against the Applicant afresh by observing the prescribed rules. The Applicant (Petitioner) filed Writ Petition No.6536/2005 before the Honble High Court of Delhi challenging the aforesaid order of the Appellate Authority but the same was dismissed vide order dated 21.04.2005. Thereafter, the Complaint Committee issued a fresh notice to the Applicant to be present before it on 09.11.2005 at 3.00 p.m. He again filed Writ Petition No.14706/2006 before the High Court of Delhi challenging the fresh enquiry being held against him and the High Court, vide its order dated 19.10.2006 in CM No.11576/2006 in the said Writ Petition allowed the enquiry to be continued but any action to be taken pursuant to the enquiry was made subject to the court till the next date of hearing. The Committee submitted its report on 02.04.2007 and the conclusion arrived at by it in its report was as under:-
(i) The remarks have been passed by Dr. S.K. Das.
(ii) These remarks are found to be sexually coloured and falling with the definition of sexual harassment as per the judgment of the Supreme Court in Vishaka Vs. State of Rajasthan 1997 (6) SCC 241.
(iii) Appropriate action under the CCS (CCA) Rules, 1964 may be taken by the disciplinary authority against Dr. S.K. Das for passing sexually coloured remarks against Dr. (Mrs.) D. Sanyal.
Based on the aforesaid report, the Applicant was placed under suspension vide order dated 20.02.2004. When the Applicant got the copy of the said report, he sought permission to withdraw the aforesaid Writ Petition so as to enable him to assail the same by filing appropriate proceedings. Consequently, the aforesaid Writ Petition was disposed of by High Court vide order dated 30.05.2007.
3. Thereafter, in consideration of the aforesaid report of the Complaints Committee, the Disciplinary Authority, vide its order dated 07.04.2008, again dismissed him from service with immediate effect. The Petitioner on 12.05.2008 filed an appeal against the aforesaid order of the Disciplinary Authority and the Appellate Authority in its meeting held on 12.08.2008 modified the said penalty to that of reduction to a lower stage in the time scale of pay. The aforesaid decision was also conveyed to the Applicant by the Appellate Authority vide its order dated 25.08.2008 and the Applicant was allowed to join duty. Thereafter, the Applicant has challenged the aforesaid order before the High Court and later it was transferred to this Tribunal as stated earlier. During the pendency of these proceedings, the Applicant retired from service in the year 2011.
4. The main ground on which the Applicant has challenged the aforesaid orders in the disciplinary proceedings is that in spite of the advice of the first and second Complaints Committees, the Respondents did not follow the prescribed procedure as laid down in CCS (CCA) Rules, 1965 before imposing the penalty upon the Petitioner. In this regard the learned counsel for the Petitioner Shri Kumar Parimal relied upon the judgment of the Supreme Court in Vishaka & Others Vs. State of Rajasthan and Others 1997 (6) SCC 241. According to the said judgment, the employers have to ensure prevention of sexual harassment of women. It, inter alia, provided that an appropriate mechanism should be created by the employer organizations for redressal of the complaints made by a victim of sexual harassment and that the complaint mechanism should be adequate to provide a Complaints Committee apart from a special Counsellor or other support services. The Complaints Committee was also required to be headed by a woman not less than half of its members should be women. The Complaints Committee is required to make an annual report to the Government department concerned of the complaints and actions taken by them. Pursuant to the aforesaid directions of the Apex Court, the Government of India amended the CCS (Conduct) Rules, 1964 and included Rule 3 ( c) which forbids the Government servants from indulging in sexual harassment. The said rule reads as under:-
3-C. Prohibition of Sexual harassment of working women (1) No Employee of the Secretariat shall indulge in any act of sexual harassment of any woman at her work place.
(2) Every Employee of the Secretariat 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.
5. The learned counsel for the Applicant has also relied upon the subsequent judgment of the Supreme Court in the case of Medha Kotwal Lele and Others Vs. UOI and Others 2004 (5) Scale 573. In the interim order dated 26.04.2004 in the said case, the Apex Court directed that the Complaints Committee shall be deemed to be an inquiry authority in such cases for the purposes of Central Civil Services (Conduct) Rules, 1964 (hereinafter called CCS Rules) and the report of the Complaints Committee shall be deemed to be an inquiry report under the CCS Rules. The said order reads as under:-
Notice had been issued to several parties including the Governments concerned and on getting appropriate responses from them and now after hearing learned Attorney General for UOI and Learned Counsel, we direct as follows:
Complaints Committee as envisaged by the Supreme Court in its judgment in Vishaka's Case, MANU/SC/0786/1997: AIR1997SC3011, will be deemed to be an inquiry authority for the purposes of Central Civil Services (Conduct) Rules, 1964 (hereinafter called CCS Rules) and the report of the Complaints Committee shall be deemed to be an inquiry report under the CCS Rules. Thereafter the disciplinary authority will act on the report in accordance with the rules.
6. The Honble High Court of Delhi has also considered the same issue in its judgment in the case of Sandeep Khurana Vs. Delhi Transco Ltd. and Others 135 (2006) DLT 346 and formulated the question as to what is the procedure to be followed for taking disciplinary action on a complaint of sexual harassment? The High Court answered the aforesaid question and it reads as under:-
30. When the rules are amended to say that the Complaint Committee as envisaged in the Vishaka's case (Supra) would be deemed to be Inquiry Authority for the purpose of CCS (CCA) Rules it is imperative that the Complaint 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 charge-sheet, 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 Complaint 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.
7. The Respondents have filed their reply stating that the report of the Complaints Committee was forwarded to the Director, IPFT with the advice to forward a copy of the same to the Applicant for submitting his response within the prescribed period. Thus, after giving an opportunity to the Applicant, the Disciplinary Authority passed the order as per Rule 15 of CCS (CCA) Rules, 1965. They have also stated that the Complaints Committee has concluded that the remarks passed by the Applicant was found to be sexually coloured and falling within the definition of sexual harassment as per the judgment of Supreme Court in Vishakas case (supra). Therefore, in consideration of the report of the sexual harassment committee and also in view of the seriousness of the issue, the Petitioner was dismissed from service of the Institute. Further, according to the Respondents, a reasonable opportunity was given to the Applicant to defend his case and there was no violation of principles of natural justice, as alleged by him.
8. We have heard the learned counsel for the Applicant Shri Kumar Parimal and the learned counsel for the Respondents Shri Rajinder Nischal. In our considered view, the Respondents have punished the Petitioner without affording any reasonable opportunity to defend his case. The first Complaints Committee which has gone through the allegations made by Dr. (Smt.) Doyel Sanyal has come to the conclusion that a prima facie case against the Applicant was made out and the same was required to be inquired into in greater detail by the Department as per Rules. It has, therefore, recommended to take appropriate action against the Applicant under the CCS (CCA) Rules, 1965. The said procedure adopted by the said Complaints Committee was absolutely wrong and it was against the directions of the Apex Court in the case of Medha Kotwal Lele and Others (supra) as followed by the Honble High Court in the case of Sandeep Khurana (supra). Instead of holding the enquiry as the Inquiry Authority and submit the enquiry report as envisaged in the CCS (CCA) Rules, 1965, for the Disciplinary Authority to take action on it, the Complaints Committee considered the representation of the Applicant and the statements of the witnesses on behalf of the complainant and submitted a report stating that the remarks passed by the Applicant against Dr. Sanyal are found to be sexually coloured and falling within the definition of sexual harassment and recommended further that appropriate action under the CCS (CCA) Rules, 1964 may be taken by the Disciplinary Authority against. The Disciplinary Authority also, in an arbitrary and illegal manner and contrary for the aforesaid recommendation of the Complaints Committee to initiate action against the Applicant under CCS (CCA) Rules, 1965 straightaway dismissed the Petitioner from service w.e.f. 03.08.2004. However, the Appellate Authority considered the Appeal of the Petitioner and realized that he was dismissed from service without following the rules prescribed under the CCS (CCA) Rules, 1965 as ordered by the Apex Court in Medha Kotwal Lele and Others (supra). Accordingly, the Appellate Authority vide order dated 11.01.2005 set aside the punishment and directed the Disciplinary Authority to follow the due process of law and the prescribed procedure under the CCS (CCA) Rules, 1965. The Appellate Authority has also directed the Disciplinary Authority to initiate fresh proceedings against the Applicant. Accordingly, the Respondents constituted the second Complaints Committee. The said Committee again made the same mistakes and did not act as the Inquiry Authority as per the CCS (CCA) Rules, 1965. Instead, it simply held that a prima facie case was made out against the Applicant and it was required to be enquired into greater detail as per the departmental rules. But the Disciplinary Authority again, in an arbitrary and illegal manner, refused to follow the prescribed procedure as proposed by the Complaints Committee and again imposed the penalty of dismissal from service upon the Applicant vide its order dated 04.07.2008. Even though the Appellate Authority reduced the punishment to reduction to a lower stage in the time scale of pay, it also did not ensure that the disciplinary proceedings have been conducted against the Applicant in accordance with the CCs (CCA) Rules, 1965.
9. As rightly argued by the Petitioners counsel Shri Kumar Parimal, the Complaints Committee is deemed to be an enquiring authority for the purpose of CCS (CCA) Rules, 1965 and it is imperative that the Complaint Committee proceeds according to CCS (CCA) Rules, 1965 and in the manner in which an Inquiry Authority conducts it proceedings in accordance with the said rules. The Complaint Committee which is required to function as enquiry authority under the CCS CCA) Rules, 1965 cannot return a finding of guilt against a Government servant without adopting the procedure of Rule 14 of the CCS (CCA) Rules, 1965. In other words, the Applicant should have been served with a memorandum delineating the allegations on which the charges have been framed along with list of witnesses and the list of documents by which the charges are proposed to be proved. The Applicant also should have the opportunity to cross-examine the prosecution witnesses. Admittedly, in the case of the Applicant, no such proceedings have been held. Moreover, the Disciplinary Authority has passed the order of dismissal against the Applicant based on the report of the Complaints Committee that there was only a prima facie evidence against the Petitioner which has never been tested in a duly held enquiry proceedings.
10. In the above facts and circumstances of the case, we are of the considered view that the report of the first Complaint Committee dated 21.11.2003, first order of the Disciplinary Authority dated 03.08.2004, first order of the Appellate Authority dated 11.01.2005, the report of the second Complaint Committee dated 02.04.2007, second order of the Disciplinary Authority dated 07.04.2008 and the second order of the Appellate Authority dated 12.08.2008 are unsustainable in law. Accordingly, the aforesaid orders are quashed and set aside and OA is allowed with all consequential benefits. The Respondents shall comply with the aforesaid directions by passing appropriate order(s) within a period of 2 months from the date of receipt of a copy of this order.
11. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh