Central Administrative Tribunal - Jodhpur
Mandakini Joshi vs Prasar Bharati, M/O Information And ... on 15 September, 2023
1
O.A. No. 290/00310/2017 - Mandakini Joshi Vs. UOI & Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH
Original Application No. 310/2017
Date of Pronouncement: 15.09.2023
Date of Reserve : 25.08.2023
CORAM
HON'BLE DR. NANDITA CHATTERJEE, MEMBER (ADMINISTRATIVE)
Ms. Mandakini Joshi D/o Late Shri Mahesh Chandra Joshi, aged 48
years, resident of 2/183, Mukta Prasad Nagar, Bikaner. At present
posted as Announcer, Aakashvani Centre, Bikaner. .......Applicant
[By Advocate Mr. R.S.Saluja]
Versus
1. Union of India through the Prasar Bharti, India‟s Public Service
Broadcaster through the Chief Executive Officer, Prasar Bharati
Secretariat, P.B. House, Copernicus Marg, Ministry of Information
and Broadcasting, New Delhi - 110 001.
2. The Director General, Aakashvani, New Delhi.
.....Respondents
[By Advocate: Mr. K.S. Yadav]
ORDER
Dr. Nandita Chatterjee, Member (A) :
Aggrieved with the minor penalty imposed on her, the applicant has approached this Tribunal under Section 19 of the Administrative Tribunal‟s Act, 1985, praying for the following relief :
―(i) The order Annexure A/1 dated 19.07.2016 & Annexure A/2 dated 12.07.2017, whereby punishment of stoppage of three grade increments without cumulative effect affirmed by Appellate Authority by Annexure A/2 may kindly be quashed and set aside.2
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(ii) That as pursuant to punishment order increments are likely to be withheld, thus while allowing the Original Application, it may further be directed that such increments are to be released in favour of applicant.
(iii) Any other favourable order which this Hon'ble Tribunal may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the applicant.
(iv) Original application filed by the applicant may kindly be allowed with costs.‖
2. This matter is taken up by the Single Bench in view of the revised list dated 04.04.2000 and that dated 10.09.2021 issued under Sub Section (6) of Section 5 of the Administrative Tribunals Act, 1985, as no complicated questions of law is involved in this matter, and, with the consent of the parties.
3. Heard both learned counsel. Examined pleadings, documents on record and those brought during hearing.
Learned counsel for the applicant would also furnish a set of judicial pronouncements in support.
4. Learned counsel for the applicant would submit that the applicant was appointed as an Announcer in 1997 at the Bikaner Centre of Aakashwani, and, in September 2015, was entrusted with the duties of Mahila Jagat Section.
That, a section of staff/workers were annoyed with the fact that she was trying to impose discipline in the said Section. An allegedly false report was sent to the higher authorities, alleging that the applicant, in collusion with the Programme Head, has indulged in sexual harassment, raising for the first time such allegations against a lady official.
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The applicant would allege that the Internal Complaint Committee constituted to look into such allegations treated her very harshly and the inquiry culminated in an incomplete report.
That a show cause notice enclosing the Internal Complaint Committee report was served on her on 19.04.2016 as per Annexure A/4 to the O.A., directing her to submit comments on the said report, within ten days.
That, while the report was under preparation, the applicant had represented, alleging a conspiracy arising out of mala fide intent of some of her colleagues. The said representation, however was ignored by the respondents.
The applicant furnished her reply to the said show cause notice on 29.04.2016 as per Annex. A/7 to the O.A., but the said respondent No. 2 in complete non consideration of her representation, imposed on her a minor penalty of "stoppage of three grade increments without cumulative effect" in terms of Rule 11 (iv) of the CCS (CCA) Rules, 1965.
Aggrieved with such orders of the disciplinary authority dated 19.07.2016, the applicant thereafter preferred a departmental appeal (Annex.A/8 to the O.A.) but the appellate authority, vide his orders dated 12.07.2017 (Annex.A/2 to the OA), rejected her appeal and thereby upheld the orders of the disciplinary authority. Accordingly, challenging the orders of the disciplinary authority as well as that of the appellate authority, the applicant has approached this Tribunal praying for the abovenoted relief.
5. The applicant would advance the following grounds in support of her claim.
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(a) That, the applicant has never been granted an opportunity of hearing even by the Internal Complaint Committee, and, that her statements before the Internal Complaint Committee had never been taken on record.
(b) That the disciplinary authority has not conducted an inquiry as called for under Rule 16 of the CCS (CCA) Rules, 1965.
(c) A mandatory requirement of Rule 16 of the CCS (CCA) Rules, 1965 states that, the disciplinary authority, after taking into consideration the representation of the delinquent employee, shall record an imputation of misconduct or misbehavior and that such process was overlooked by the disciplinary authority. Further, in violation of the provisions of Rule 16 of the CCS (CCA) Rules, 1965, no reasons have been advanced in the penalty orders imposed by the disciplinary authority.
(d) That, the applicant was never given an opportunity of cross examining the witnesses before the Internal Complaint Committee.
(e) That, appellate authority has not functioned in accordance with the responsibilities conferred on him as per Rule 13 of the CCS (CCA) Rules, 1965.
Learned counsel for the applicant would also furnish the following judicial decisions, in her support:
"1)1988 (2) RLR 499 - Sumer Singh & Khyali Lal Vs. State of Rajasthan.
2)1990 AIR (SC) 10 - S.S.Rathore Vs. State of Madhya Pradesh
3)2022 (6) Supreme 624 - Union of India & Ors. Vs. Mahendra Singh
4)1976 AIR (SC) 789 - Hukum chand Shyam Lal Vs. UOI & Ors.
5)2001 (9) SCC 180 - O.K.Bhardwaj Vs. UOI
6)1980 AIR (SC) 840 - M.d. U.P.Warehousing Vs. Vijay Narayan Vajpayee 5 O.A. No. 290/00310/2017 - Mandakini Joshi Vs. UOI & Ors.
7)1961 AIR (SC) 1623 - State of M.P. Vs. Chintaman Sadashiva
8)1990 CRLJ (SC) 2148 - S.N. Mukherjee Vs. UOI
9)D.B. SAW No. 705/2022 - Vijay Dhaker Vs. NPCIL
10)1977 AIR (SC) 747 - Mysore State Road T. Co. Vs. Mirja Khasim Ali Beg
11)1976 AIR (SC) 1899 - Baradakanta Mishra Vs. High Court of Orissa"
6. Per contra, the respondents would rebut the claim of the applicant in their following arguments :-
(i) That the Internal Complaint Committee had indeed taken consideration of the statement of the applicant and had properly considered it while finalizing their report.
(ii) That the allegation of the applicant that one Member of the Committee had not signed the report has been taken into consideration by the disciplinary authority in that the report may be accepted as per the recommendations of the majority (as per para (ii) of page 5 of his orders).
(iii) That, the applicant‟s representation dated 21.01.2016 alleging mala fide against her colleagues was only an attempt by the applicant to divert the attention of the authorities from the main subject matter of the complaint against her.
(iv) That both the Internal Complaint Committee as well as the disciplinary authority have taken due cognizance of the applicant‟s statements furnished in her support.
(v) That the applicant was also given a patient hearing by the Internal Complaint Committee and the applicant had indeed participated in such inquiry proceedings.
(vi) That as per proviso to Rule 14 (2) to the CCS (CCA) Rules, 1965 inserted vide GSR 225 dated 10th July, 2004, the Complaint Committee 6 O.A. No. 290/00310/2017 - Mandakini Joshi Vs. UOI & Ors.
established in each Ministry or Department, shall be deemed to be the inquiring authority appointed by the disciplinary authority for such purposes and the Complaint Committee shall hold, if separate procedures have 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. In the instant matter, the Internal Complaints Committee followed the procedure prescribed in accordance with the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013.
(vii) That, as the inquiry committee had concluded that the allegations against the applicant herein, have been proved and had recommended that the competent disciplinary authority proceeds to take action against the applicant herein for sexual harassment as misconduct, the minor penalty imposed was in accordance with law.
(viii) That, as per DoP&Ts OM dated 03.08.2009, a complaint forwarded by the disciplinary authority to the Complaint Committee is to be treated as a chargesheet.
7. In her rejoinder, the applicant has reiterated her allegations that the provisions of the Act of 2013, have not been complied with and that the CCS (CCA) Rules, 1965, had been given a complete go bye.
That, before proceeding with the inquiry under Section 10 of Act 2013, the Internal Complaint Committee would have taken up the matter for reconciliation but no such efforts have been brought on record. Further, according to Section 13 of the Act of 2013, an inquiry 7 O.A. No. 290/00310/2017 - Mandakini Joshi Vs. UOI & Ors.
was required to be held in accordance with the Service Rules which was not so done in the case of the instant applicant.
8. Having heard the rival contentions and having examined the records as well as the judicial decisions furnished in support, this Tribunal would be of the considered opinion that the primary issue to be adjudicated herein is whether the norms of natural justice and/or procedural justice as provided in the Sexual Harassment of Women at Work place (Prevention, Prohibition and Redressal) Act, 2013 and the CCS (CCA) Rules, 1965, had been duly adhered to in the context of the instant applicant.
9. After the promulgation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013, [referred to as „Act of 2013‟ hereafter] a Notification was issued on 19.11.2014 in the Gazette of India (extra ordinary) in the form of GSR 822 (E) and GSR 823(E) respectively. Upon such Notification, the DoP&T had issued an OM on 27.11.2014 on the following subject matter :-
Alignment of Service Rules with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
The relevant extracts of such OM are as under :-
―2.The CCS (Conduct) Rules, 1964 and CCS (CCA) Rules,1965 have been amended vide Notifications of even number published as G.S.R. 823(E) and G.S.R.822(E) in the Gazette of India -- Extraordinary dated 19-11-2014.
3. xxxxxx xxxxxx xxxxxx xxxxxx
4. xxxxxx xxxxxx xxxxxx xxxxx
5. All Ministries/Departments are advised that the following procedure may be adopted while dealing with complaints of sexual harassment:- (i) Sexual harassment will include any one or more of the Acts or behaviour defined in Rule 3-C of the CCS (Conduct) Rules 1964 read with Sec 3(2) of SHWW (PPR) Act. (ii) The Committee constituted in each Ministry/ Department/ office under the CCS (Conduct) Rules, 1964 shall inquire into complaints of sexual harassment in accordance with the provisions of Section 4 of the SHWW (PPR) Act. (iii) The Committee will as far as practicable follow 8 O.A. No. 290/00310/2017 - Mandakini Joshi Vs. UOI & Ors.
the procedures prescribed in CCS (CCA) Rules 1965 for conduct of the inquiry. (iv) If any complaint is received directly by the committee, the same shall be referred to the appropriate disciplinary authority and the Committee shall inquire into the complaint on the complaint being referred to it by the disciplinary authority.‖ It transpires, therefore, that the functional procedure to deal with complaints of sexual harassment was vested with the Committees constituted in each Ministry/Department/Office who shall inquire into the complaints of sexual harassments in accordance with the provisions of Section 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013. Section 4 of the said Act refers to the constitution of an Internal Complaints Committee. The said Committee is to follow the procedures prescribed in the CCS (CCA) Rules, 1965 for conduct of such inquiry, as far as practicable, in this regard. The procedure for conducting inquiries as contained in Section 14 of the CCS (CCA) Rules, 1965 are contained in the provisions of Sections 14 (3) to 14(24) of the said Rules.
On the other hand, if the said authority intends to proceed under Rule 16 of the CCS (CCA) Rules, 1965, the provisions of Section 16(1)(b) and Government of India Instructions dated 28.10.1985 will apply.
Further, if any complaint is received directly by the Committee, the same shall be referred to the appropriate disciplinary authority and the said committee shall inquire into the complaint after the same is referred by the disciplinary authority.
10. In the instant matter, as it transpires from the inquiry report of the Internal Complaints Committee (annexed at pages 43 to 49 of the O.A.), the Internal Complaints Committee had acted on the complaint received against the applicant pursuant to the directions received from respondent No. 2, who is the disciplinary authority with respect to the 9 O.A. No. 290/00310/2017 - Mandakini Joshi Vs. UOI & Ors.
applicant. The said inquiry report is extracted as under with supplied emphasis :-
―Subject : Inquiry on sexual harassment of women's at work place in the complaint made by various women casual comperes/announcers against Shri Shayam Panwar, Prog. Executive (Prog. Head) and Ms. Mandakini Joshi, Announcer, at AIR, Bikaner.
Pursuant to the directions received from the Director General, All India Radio, New Delhi vide letter No. 01/02/2016-WL/27 dated 21.01.2016 and the office note issued by Station Director, All India Radio, Jaipur dated 29.01.2016 for the Internal- Complaint Committee members nominated to look into the matters relating to sexual harassment of women's at work place to conduct inquiry in the complaint made by various casuals / announcers against Sh. Shyam Panwar, PEX & Prog. Head and Ms. Mandakini Joshi, Announcer posted at AIR, Bikaner.
Knowing that the incidence of sexual harassment at work place is a very sensitive matter and is governed under the provisions contained in the Act 2012 which was subsequently amended and converted into a criminal offence under Act 2013 section 354 of Indian Panel code containing provisions for Prevention, Prohibition and Redressal that seeks to protect women from sexual harassment at their place of work and take stern action against the accused employee. Perhaps this has been enacted to protect the fundamental rights under section 14 & 15 of the constitution of India and her right to life and live with dignity under article 21 of the constitution and right to carry on her profession in safe environment. It is the sole responsibility of employer to ascertain that there is no incidence of sexual harassment at work place. The ICC members admired the sensitivity & gravity and immediately conducted a meeting on dated 01.02.2016 to peruse the documents received from the DG office containing the original complaints (Annexure - I). There was also a mention in the note of Station Director that the matter is to be taken on priority and findings / recommendations of the committee is to be submitted within 10 days. The names & designations of the ICC members are as follows :-
1-Smt. Lalita Nair Nirdosh, Assistant Director (OL) & Chairperson. 2-Sh. S.K. Meena, Deputy Director (AR Unit) & Member 3-Smt. Asha Wadhwani, Admn. Officer & Member 4-Smt. Beena Chaturvedi, Announcer & Member 5-Sh. R.N. Mathur, Head Clerk & Member 6-Sm. Meena Sharma, NGO from Bikaner.
xxxx xxxxx xxxxx
xxxxx xxxxx xxxxx
xxxxx xxxxx xxxxx
The ICC members invited all the complainants one by one to hear them with patience and gave them liberty to disclose all their grievances in details and also give the same in writing so that it can be submitted before the competent authority for their perusal and necessary action. Their statements are enclosed herewith as Annexure-IV. The disclosures of the complainants were very shocking, shameful, painful and in violation of the legislative act 2013 framed for prevention of women's at work place.
xxxx xxxxxx xxxxx
xxxx xxxxxx xxxxx
xxxx xxxxxx xxxxx
Ms. Mandakini was the next for interrogation. Her version was quite different from others. She stated that Sh. Panwar is trying to change the working pattern of this 10 O.A. No. 290/00310/2017 - Mandakini Joshi Vs. UOI & Ors.
stations to bring improved outputs. That he is quite strict in the work place and this is the only reason why casuals are against him. Further she stated that she is also sitting with Sh. Panwar but she has never heard him talking in dual meaning words and any other signs etc. which has filthy meaning. She kept on speaking on her own continuously instead of replying to specific questions asked by the committee. Her statement in writing is enclosed as (Annexure VIII).
To sum up, the main alleged in the instant case is Sh. Shyam Panwar, PEX who joined AIR, Bikaner on 31.08.2015 and who has been charged of exploiting women's at work place in association with Ms. Mandakini, Announcer who is tempting and forcing women's to go & meet Sh. Panwar. The role of Ms. Mandakini being a women is the most unfortunate part of the episode....................
1. xxxx xxxxxx xxxxxx xxxx xxxxxx xxxxxx
2.xxxx xxxxxx xxxxxx
3.xxxx xxxxxx xxxxxx
4. The committee arrived at a common consensus of opinion that Sh. Shyam Panwar, PEX is the main accused in this matter of sexual harassment of women's at work place and explicitly recommend action against him as deemed fit by the competent authority under the conduct rules for his misdeed which would suffice to make him realize his deed and teach him a lesson to be careful in future while dealing with women's.
However, it is clarified here that no incidence of sexual intercourse / rape has been reported by any of the complainants.
It is also relevant here to recommend suitable action against Ms. Mandakini who is also a accused in a supporting role in exploitation of women's at work place. She also talked to committee members in a high volume tone and argued with them not giving answers to the specific questions asked with her. She also said that the committee is forcing her to admit the crime which she has not done. Perhaps she was trying to raise a dispute with the committee and give a different turn to the inquiry so that the entire proceedings are deferred.
As regards the representation of Ms. Mandakini and Sh. Shyam Panwar is concerned, the committee is of the opinion that this is a after thought of both the officers framed with a view to counter attack the complainants and take revenge from them. Had their been any lapse shortcomings in the performance of duties on the past of casuals, suitable action should have been taken by Shri Panwar earlier to the complainants. Perhaps they want to mislead the committee and the higher authorities and protect their professional career and save their skin.
5. One of the member of the Committee - Shri Siva Kalyan Meena, Dy. Director, who is also a Liaison Officer has crossed examined the complainants and other witnesses to ensure that there is no conspiracy or harassment to a SC/ST candidate. The Committee observed that there is no such issue.
xxxx xxxxx xxxxx
xxxx xxxxx xxxxx―
From the report of the Committee and also from the above
noted extracts, the following transpires :-
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(a) That the Committee received directions from the disciplinary authority of the applicant.
(b) The Internal Complaints Committee had been duly constituted with six Members who had proceeded to Bikaner, for conducting inquiry at AIR, Bikaner, on 3rd/4th February, 2016 with advance intimation to all concerned.
(c) That the Internal Complaints Committee Members invited all the complainants and recorded their statements to arrive at a conclusion that the disclosures of the complainants were very shocking, shameful, painful and in violation of the Legislative Act 2013.
(d) That the applicant was called for interrogation and her statement was enclosed as Annex. VIII to the said Committee‟s Report. According to the Internal Complaints Committee, while denying the allegations, the applicant did not reply to the specific questions raised by the Committee Members, but kept speaking on her own continuously totally disregarding the interrogation process.
(e) The Committee found that the official against whom the primary allegations have been alleged, one Sh. Shyam Panwar, PEX, had been charged of exploiting women workers at the work place, and, that, the applicant Announcer, was tempting and forcing the women workers to visit Shri Panwar‟s office chamber.
That Sh. Panwar denied all such allegations stating that he was responsible for his own decisions and actions and does not regret the same.
The Committee arrived at a common consensus opinion that Sh. Panwar, PEX, was indeed guilty and explicitly recommended actions against him under conduct rules. The Committee also recommended 12 O.A. No. 290/00310/2017 - Mandakini Joshi Vs. UOI & Ors.
suitable action against the applicant as they found her guilty in her supporting role in exploitation of women at work place. The Committee also found that the applicant herein was arrogant, argumentative and evasive in replying to the specific questions of the Committee Members. The Committee also noted in their report that the applicant had alleged that the Committee was forcing her to concede to a crime that she was not guilty. Such attempts were only to raise a dispute with the Committee.
The report of the Committee has also recorded that one Dy. Director, has cross examined the complainants as well as other witnesses, and, that, no issue was raised in this regard.
11. The applicant would allege that despite the provisions of Section 11 of the Act of 2013, the copy of the findings of the Committee has not been made available so as to enable her to make a representation upon findings before the Committee.
This issue has not been raised by the applicant in the pleadings or in the rejoinder, excepting in an oblique reference to the violation of Section 11(1) of the Act of 2013.
Her submissions before the Internal Complaints Committee dated 03.02.2016, however, as brought on record by learned counsel for the respondents, are as under :-
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O.A. No. 290/00310/2017 - Mandakini Joshi Vs. UOI & Ors.
Further, the applicant‟s statement dated 04.02.2016 at Annex. A/6 to the O.A. on the other hand, is reproduced herein :-15
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In her statements, the applicant had denied the allegations, had claimed to be dutiful and committed to her work but had not raised any allegations of non receipt of the Committees‟ findings or denial of natural justice in such proceedings. The applicant would allege that she was denied the right of cross examining the complainants. The Committee‟s report, however, reveals that one Dy. Director was entrusted to cross examine each of the complainants and no shortcomings had arisen therefrom. Hence, the applicant has not been able to establish that natural justice was denied to her in the inquiry conducted by the Internal Complaints Committee.
11. In the context of procedural justice, the applicant would allege that the provisions of Section 13 of the Act of 2013 have been violated.
Section 13 of the Act of 2013 reads as under :-
―(1) On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties.
(2) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter.
(3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be--
(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;
(ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section 15:
Provide that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman:16
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Provided further that in case the respondent fails to pay the sum referred to in clause (ii), the Internal Committee or as, the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.
(4) The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him.‖ It is on record that the inquiry report of the Committee was indeed made available to the applicant by the disciplinary authority on 19.04.2016 as per annexure A/4 to the O.A. It is also on record that the applicant reacted to the same as per her response to the said letter at Annex. A/7 to the O.A. The said response at Annex. A/7, is reproduced as under :-17
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O.A. No. 290/00310/2017 - Mandakini Joshi Vs. UOI & Ors.
From her response, the following are inferred :
(a) That the report of the Committee as forwarded to the applicant on 19.04.2016, does not contain the signature of the NGO Member and, hence, it is difficult for her to comment on such an incomplete report.19
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(b) That the said Committee has decided unilaterally, and, that, she was not permitted to furnish any defence before the said Committee.
(c) That the entire proceedings of the Committee was a pre scripted drama to victimize the applicant.
(d) That the complete report (along with statements), was required to be furnished to the applicant to enable her to respond to the findings of the report.
(e) That the authorities do not have the courage to accept the truth.
The applicant‟s reply to the inquiry report does not respond to the specific issues raised in the report, but is a generic statement regarding the attitude and conduct of the Committee Members. The applicant has also inferred that the members were pre decided to victimize her.
12. Section 13 (3) of the Act of 2013, prescribes that, upon inquiry, if the allegations against the official concerned has been established by the Committee, it shall recommend to the employer to take action for sexual harassment as a misconduct in accordance with the service rules as applicable to the delinquent official. In the instant matter, there is a clear recommendation against the applicant at page 48 of the O.A. wherein, the Committee had recommended as under :-
―It is also relevant here to recommend suitable action against Ms. Mandakini who is also a accused in a supporting role in exploitation of women's at work place. She also talked to committee members in a high volume tone and argued with them not giving answers to the specific questions asked with her. She also said that the committee is forcing her to admit the crime which she has not done. Perhaps she was trying to raise a dispute with the committee and give a different turn to the inquiry so that the entire proceedings are deferred.‖ 20 O.A. No. 290/00310/2017 - Mandakini Joshi Vs. UOI & Ors.
Accordingly, the onus was on her employer to proceed against the applicant in terms of the applicable service rules. In the instant matter, it is undisputed that the service rules as applicable to the instant applicant, are the CCS (CCA) Rules, 1965. Learned counsel for the respondents would refer to provisions introduced in rule 14 (2) by the Gazette Notification dated 10.07.2004. The said provision reads as under with supplied emphasis :-
―14. Procedure for imposing major penalties :
(1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and rule 15, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act.
(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof.
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.‖ Thereafter, after the promulgation of the Act of 2013 and publication of Gazette Notification dated 19.11.2014, DoP&T had issued an OM the subject of "Alignment of Service Rules with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013". In such OM, the provisions of Sec. 14 (2) as noted above, have not been excluded implying thereby that the provisions to Rule 14 (2) stating that the Internal Complaints Committee would function as the inquiring authority appointed by the disciplinary authority for the purpose of CCS (CCA) Rules, 1965, would continue to prevail. It is 21 O.A. No. 290/00310/2017 - Mandakini Joshi Vs. UOI & Ors.
noted therefore, that, neither the Act of 2013 nor the OM dated 27.11.2014 has precluded the procedure for imposing major penalties.
13. The procedure for imposing minor penalties recorded in Rule 16 of the CCS (CCA) Rules is quoted as under :-
―16.Procedure for imposing minor penalties :
(1) Subject to the provisions of sub-rule (5) of rule 15, no order imposing on a Government servant any of the penalties specified in clause (i) to (iv) of rule 11 shall be made except after-
(a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal;
(b) holding an inquiry in the manner laid down in sub-rules (3) to (24) of rule 14, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary;
(c) taking the representation, if any, submitted by the Government servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration;
(d) consulting the Commission where such consultation is necessary. The Disciplinary Authority shall forward or cause to be forwarded a copy of the advice of the Commission to the Government servant, who shall be required to submit, if he so desires, his written representation or submission on the advice of the Commission, to the Disciplinary Authority within fifteen days;
and
(e) recording a finding on each imputation or misconduct or misbehavior.
(1-A) Notwithstanding anything contained in clause (b) of sub-rule (1), if in a case it is proposed after considering the representation, if any, made by the Government servant under clause (a) of that sub-rule, to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Government servant or to withhold increments of pay for a period exceeding three years or to withhold increments of pay with cumulative effect for any period, an inquiry shall be held in the manner laid down in sub-rules (3) to (24) of Rule 14, before making any order imposing on the Government servant any such penalty.
(2) The record of the proceedings in such cases shall include-
(i) a copy of the intimation to the Government servant of the proposal to take action against him;
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(ii) a copy of the statement of imputations of misconduct or misbehaviour delivered to him;
(iii) his representation, if any;
(iv) the evidence produced during the inquiry;
(v) the advice of the Commission, if any;
(vi) representation, if any, of the Government servant on the advice of the Commission;
(vii) the findings on each imputation of misconduct or misbehavior; and
(viii) the orders on the case together with the reasons therefor‖.
14. In the instant context, it is seen that applicant herein was duly intimated/informed of the contents of the inquiry report of the Internal Complaint Committee vide Notice dated 19.04.2016 . The inquiry was held by the Committee and the applicant was given an opportunity of filing her reply. The disciplinary authority also had referred to the records of evidence produced during inquiry, and, had thereafter decided as per Rule 11 of the CCS (CCA) Rules, 1965 on the incidence of misconduct and had imposed on the applicant a minor penalty as per Rule 11 (iv) of the CCS (CCA) Rules, 1965.
Hence the provisions of Rule 11 (1), (a), (b), (c) & (e) having been abided by, there is no violation of the procedural justice with respect to the procedure followed by the disciplinary authority. Further, the applicant had exercised her right to file an appeal as per Annexure A/8 to the O.A. and the appellate authority, having gone through each of the issues raised in her appeal, disposed of the same thereby upholding the decision of the disciplinary authority as per Rule 17 of the CCS (CCA) Rules, 1965.
15. Learned counsel would advance a number of judicial decisions in support of the applicant‟s claim:-
Learned counsel would refer to Sumer Singh (supra), and, in S.S.Rathore (supra) to highlight that even if there is no specific prayer for a relief, as the original adverse order merges in 23 O.A. No. 290/00310/2017 - Mandakini Joshi Vs. UOI & Ors.
subsequent orders, the Court can mould the relief and grant the same. The applicant herein has primarily challenged the orders of the disciplinary authority as well as the appellate authority which have considered the inquiry report of the Internal Complaint Committee. Accordingly, any challenge to the orders of disciplinary authority and appellate authority would be directed against the entire process including the inquiry report which has formed an integral part of the proceedings. Such being the case, further scope of judicial intervention in moulding of such relief, does not arise.
In Mahendra Singh and in Hukum Chand Shyam Lal
(supra), learned counsel would allege that if the statute provides for
a thing to be done in a particular manner, it has to be done in that manner and not otherwise. In the considered opinion of this Tribunal the authorities herein had acted in terms of the procedure laid down by the Department of Personnel & Training (DoP&T) vide its alignment orders dated 27.11.2014, the proviso at Rule 14(2) as well as the procedure laid down in Rule 16 of the CCS (CCA) Rules, 1965, which were the statutory provisions in this regard.
In O.K. Bhardwaj (supra), the main issue was the necessity of conducting an inquiry when the charges are denied by the applicant. It is a fact that the applicant in her statement in Annex. A/4 had denied the charges and it is also matter of record that the inquiry committee had found the applicant guilty of the alleged misdemeanor, after conducting an inquiry in which the applicant had participated. As per the proviso to Rule 14(2) of the CCS (CCA) Rules, 1965, the report of the inquiry authority would serve the purpose of inquiry report under the CCS (CCA) Rules, 1965.24
O.A. No. 290/00310/2017 - Mandakini Joshi Vs. UOI & Ors.
The ratio contained in M.D. U.P. Warehousing (supra), and, that, contained in Chintanman Sadashiva (supra) on the right to cross examine and supply of copies of documents was not alleged upfront by the applicant in her statement before the Committee. The Committee has clearly noted the scope of cross examination by a Deputy Director and nothing has been brought on record by the applicant to prove that the documents that she had prayed for had not been furnished to her by the Committee.
The ratio of S.N.Mukherjee (supra) would not apply as both the disciplinary authority as well as the appellate authority have referred to the applicant‟s representation. The appellate authority, in particular, has issued point-wise reasoned orders on each of the allegations raised by the applicant in her appeal.
The ratio in Vijay Dhaker (supra) would not apply herein as in Vijay Dhaker, the petitioner therein was not provided copy of inquiry report prior to the issuance of chargesheet. In the instant matter, the applicant was indeed provided with the copy of the inquiry report as per Annex. A/4 to the O.A. Further, the charge memorandum had been issued to the petitioner to Vijay Dhaker as per the provisions of NPCIL Discipline and Appeal Rules, 1996. In the instant matter, proviso to Rule 14 (2) read with CCS (CCA) Rules, 1965, DoP&T‟s OM dated 27.04.2014 on Alignment of the Act of 2013 with service rules, will apply.
In Mysore State Road Transport Company (supra), learned counsel would refer to the ratio that, when the initial order is void, subsequent validly made orders cannot cure that defect. The applicant has not been able to establish any fundamental invalidity in 25 O.A. No. 290/00310/2017 - Mandakini Joshi Vs. UOI & Ors.
the report of the Internal Complaints Committee to merit consideration of the ratio so cited.
In State Bank of India Vs. A.G.D. Reddy 2023 SCC Online SC 1064, the Hon‟ble Apex Court has reaffirmed the limited scope of judicial review in departmental enquiry proceedings stating that, the purpose of judicial review is not to re-evaluate the merits of a decision but to rather focus in ensuring the legitimacy of the decision-making process and verifying the presence of evidence to support the findings.
The Hon‟ble Court had further observed that, in a disciplinary proceeding, the question of burden of proof would depend upon the nature of the charge and the nature of the explanation put forward by the charged officer. In a given case, the burden may be shifted to the charged officer depending upon the explanation.
In the instant matter, the applicant has not refuted the alleged charges of sexual harassment specifically and objectively either during the process of enquiry conducted by the Internal Complaint Committee or in response to the enquiry report of the Internal Complaint Committee. The contents of her appeal were also examined in detail by the Appellate Authority in rejecting the same. The applicant has not been able to establish procedural violations in the backdrop of DoP&T‟s OM dated 27.11.2014 and provisions of Rule 16 of CCS (CCA) Rules, 1965.
16. This Tribunal would, therefore, be of the considered opinion that the applicant has not been able to successfully establish any violation of the principle of natural justice or procedural justice in the conduct of the proceedings by the Internal Complaints Committee. Further, the respondents have acted as per the provisions of rule 14 (2) and Rule 26 O.A. No. 290/00310/2017 - Mandakini Joshi Vs. UOI & Ors.
16 of the CCS (CCA) Rules, 1965 read with DoP&T‟s OM on Alignment of the Act of 2013 with Service Rules (supra).
17. Thus, the challenge to the impugned orders fail and this Tribunal does not consider this to be a fit matter to merit judicial intervention. This O.A. is, therefore, dismissed as being devoid of merit with no orders on costs.
[Nandita Chatterjee] Member (A) jrm