Central Administrative Tribunal - Kolkata
Anand Kumar Jaiswal vs S E Railway on 16 March, 2023
t oa. 1104 o018 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA O.A. 350/1104/2018 ; > RAED ly 39, Date of order + le 3) Se Coram: Hon'ble Mr. Suchitto Kumar Das, Administrative Member Anand Kumar Jaiswal, aon of late Bindeswari Prasad Jaiswal, aged about 48 years, - working as Senior Engimeer (IT), IP Centre, Kharagpur Workshop, South astern Railway, residing at Railway Quarter No. DR/II/1 Unit *B", VHF Settlement dhapatapur, P.O. & B.S, Kharagpur, Dist. West Medinipur, Pin: 721 301. Appheant. ~Versus? 1. Union of India through the General Manager, South Eastern Railway, Garden Reach, Kolkatay TOO O48. 2 Phe Principal Chief Personne! OfReer, South Rastern Raibvay, Garden Reach, Kolkata 700 O43. 3. The Senior Agsistant Financial Advisor (W/S¥ Co-ordination, South Bastern Railway, Office of the Deputy Financial Advisor and Chief Accounts Officer Workshop), Kharagpur, Tistriet Paschim Medinipore. Pin ~ 721 301. 4. Chief Works Manager, South Eastern Railway, Kharagpur Workshop, Kharagpur, Dist. Paschim Medinipore. Pix 721 300. 5. Smt. VIN, Smegh., . Assistant Chief Medical Superintendent, Naw Setthement Health Unat, Kharagpur and Presiding Officer, Internal Complaint Comnuttes, Kharagpur Workshop, \ oa, 1104 sf2pte South Mastern Railway, Dist. Paschim Medinipere. Pin-721901, Internal Complaint Committee, Kharagpur Workshop, South astern Railway through the Presiding Officer, Internal Complamt Committes, Kharagpur Workshop, Senth Rastern Railway, Kharagpar, Paschim Mecdinipare. Pin-721501., .. Respondents. For the AppHeant ' Mr. S. K. Datta, Counsel PN For the Respondents} Mr. 58, Paul, Counsel oe "Sy wisiy ae Src ee ie " 2 ee = ORDER
Per! Suchitte Kumar Das, Administrative Member (AY Hleard Ld. Counsel for both sides.
2, The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Aet, 1985, praying for the following relief "a, An order quashing and/or setting asiste the communication dated 11.5.2018 at Ansexure- AT? to the original application as well as its enclosure being the Mirmutes of the Meating of ICC dated B.5.2018,.
h. An order quashing and/or setting aside the communication dated 235.2018.
c. AN order holding that the decision te award compensation and making recovery from the salary af the applicant are bad in law, arbitrary and unlawful, accardingly, the same may be quashed...
d. An order directing the ressondants to refund the amount deducted from the salary pursuant te Annemuves-A-16 and A-17 with interest, «. An-urder directing the respondents to praduce/cause production of all relevant records, # Any other arder ar further orderfarders as to this Hon'ble Tribunal may seen ft and proper."
3. The applicant an employee of Kharagpur Workshop of South Bastern. Railway was accused of sexual harassment by a female employee in 2015. An enquiry was conducted into the allegations by the Internal Cemplaints Committee GCC) which recommended disciplinary action against the applicant. The report of the ICC proving the charges and the 3 oa. L104 oO recommendation of the ICC were accepted by the Disciplinary Authority, Disciplinary proceedings were initiated against him under Rule § and 10 of RS (D&A) Rules following which the Disciplinary Authority puxished him with a reduction in rank for 3 years with cumulative effect vide order dated 25.10.2015. On appeal, the punishment was reduced to reduction in ran for a period of one year with non-cumulative effect vide order dated T/.11.2015. In 2018, on the complaint of one Swapan Kumar Sahoo, the NHRC, after due deliberation, passed an order upon Chairman Railway Board to pay Re. 50,000/- te the original complainant in the Sexual Harassment Case, Railway Board directed South Eastern Railway to pay the amount as directed by the NHRC and recover the amount from the applicant after following due process. South Rastern Railway remitted the matter to the Internal Complaints Committes which recommended deduction of Re, 5G000/ fram. the applicant's salary in 16 monthly installments of Rs, 5000/- each. Agerieved by the deduction from his pay, the applicant has approached this Tribunal by this O.A. impugning the order of the respondents dated 23.05.2018 ordering recovery of Res. 60,000/° from his salary. During the pendency of the O.A., this Tribunal, by an interim order, stayed the recovery of the monthly amount from the salary of the applicant.
4, Learned Counsel for the applicant submits that having submitted the inquiry report which wag accepted by the Diseryplinary Authority and with the imposition of punishment, the role of the ICC heeomes nonest, With the appellate authority (lisposing of his appeal and the applicant having accepted the decision of the appellate authority the matter has attained finality. The ICO cannot be directed to reopen the case and make further recommendations for financial recovery from the pay of the SA 4 oa, 1104 ofZ018 applicant. He further submits that the original complainant did not approach the NHRC which did not involve the present applicant im its proceedings which culminated in Hs order to pay Rs.50,000/ to the original complainant. The direction was upon Chanman Railway Board te pay the amount and the petitioner was in no way concerned with the order passed by the NHRC, He submits that the bmpuened order is bad in 5, Respondents in their reply point out thet the NHRC direction for payment of compensation to the original complainant was a direct consequence of the petitioner's misdemeanors which was proved by the TC th ite repert. The ICC. as per rules, should have recommended payment of compensation to the complaimant out of the salary of the charged official, the applicant herein. This was not done by the IC m the first instance. This was sought to be reetified by recomvening the [CC which recommended recovery of Rs. 50000/- from the applicant's salary. Learned Counsel for the respondents, during argument, submits that since the compensation amount of Rs. 50,000/ had to be paid to the complamant, it only stands to reason that the amount is recovered from the salary of the applicant, whose actions resulted in the order of the NHRC.
&, Heard the parties at length. Perused documents ancl pleadings on record, It is noted that the disciphinary proceedings against the appleant are net under challenge. The applicant has already accepted the punishment order issued by the Appellate Authority. He hae challenged the legality of the order directing recovery of the compensation amount of Rs, 50,000/ fram his salary after a lapse of 3 years after the fina! y os. 1104 of2018 {st punishment order was passed and acted upon. Reconvening of ICC and its recommendation regarding recovery of Rs. 50000/ from the applicant's salary has also been questioned by the appheant.
The relevant parts of RBE 16/2015 incorporating the provisions of the Sexual Harasement of women and Workplace Act are as under:
"4HA) Where the Internal Cammittee arrives at the conclusion thut the abegation against the charged official has been proved, it shall recommiend to the discinlinary authority-
fa} to take action for sexual harassment as a misconduct in-aecordance with the provisions of the service rules applicable to the charged official.
ib} te deduct, nowvithstanding anything Jn the service rules applicable to the charged official, from the salary or wages of the charged official such sum as it may consider appropriate to be paid to the aggrieved waman or to her legal heirs, as it may determine in accordance with the pravisions of Section 15 of the Act. Provided that in case the Rallwoy is unable to moke such deduction from the salary of the charged official due to his being absent from duty or cessation of emplayment if may direct te the charged official to pay such sum to the oggrieved woman, Provided further that in case the charged official fails to pay the sum, the internal Committee may forward the order for recovery of the sun? as an arrear of jand revenue to the concerned Listrict Officer. Such compensution awarded by the faternal Committee to the oggnieved wonan or to her legal heirs shall not amount to penalty under Rule & af BS(D&A} Rules, 1968.
fc) The disciplinary authority shall act upon the recommendation within sixty days of its recelot by hin Tn the instance case, ICC did not recommend payment of compensation to the complainant. Based on its report Disciplinary Action.
was taken against the applicant which reached finality with the imposition of penalty on him as per the punishment order of the appellate authority, The moot issue is whether the respondents can direct the ee after the conclugion..of the [Nseiplinary Proceedings to recover and recommend payment of compensation. Railway Board im its letter dated 27.08.2018 to South Bagtern Railway has sought te justify the respondents action by observing that the word used in the Act to define the role and recommendation of the ICC is "shall', making it mandatory for the ICC to recommend monetary compensation te the complainant.
§ : Ga. 1104 of2018 : However, the fact is, the [CC, in its report dated 17.07.2015, did not '\ recommend any monetary compensation. The provisions of the SHWW Act and RBE 15/2015 were available to the Committee when it made its initial recommendation. Reconvening the ICC and directing it to make a specific recommendation awarding compensation of an amount equivalent to the amount directed by NHRC to be paid by Chairman Railway Board and recovering the amount from the applicant's salary after the issue had attained finality, is irregular and contixary to the principles of natural justice, Respondents have erred in directing the ICC to reconvene and egeinistayy.
* "A submit fresh recommendations and then ordering recovery of Rs, 50,000/ from the salary of the applicant.
7. In view of the above, respondents are directed not to proceed with the recovery of Rs. 50,000/- from the applicant. Any amount which may have been recovered on this account should be refunded to the applicant within a period of 90 days from the date of this order.
§, With these directions, O.A. stands disposed of, No costs.
(Suchitto Kumar Das) Member (A) i clis/