Rajasthan High Court - Jaipur
Shital Prasad Sharma vs State Of Raj And Ors on 6 April, 2018
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 2313/2018
Shital Prasad Sharma S/o Sh. Nathu Lal Sharma, Aged About 59
Years, R/o 4H219, Indira Gandhi Nagar, Jagatpura, Jaipur (At
Present Under Awaiting Posting Order In The Office Of
Commissioner, Agriculture, Krishi Pant Bhawan, Jaipur).
----Petitioner
Versus
1. The State Of Rajasthan Through Principal Secretary,
Department Of Agriculture, Government Of Rajasthan,
Government Secretariat, Jaipur.
2. Principal Secretary, Department Of Personnel,
Government Of Rajasthan, Government Secretariat,
Jaipur.
3. Commissioner, Department Of Agriculture, Government Of
Rajasthan, Pant Krishi Bhawan, Jaipur.
4. Chairperson, Working Women Exploitation Prevention
Committee, Constituted Under The Sexual Harassment Of
Women At Work Place (Prevention, Prohibition And
Redressal) Act, 2013, C/o Directorate Of Commissioner,
Department Of Agriculture, Government Of Rajasthan,
Pant Krishi Bhawan, Jaipur.
----Respondents
For Petitioner(s) : Shri Virendra Lodha, Sr.Advocate
assisted by Shri Jai Lodha, Advocate.
For Respondent(s) : Shri Jagmohan Saxena, Additional
Advocate General.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Judgment
Judgment reserved on : 21st March, 2018
Date of Judgment : 6th April, 2018
REPORTABLE
(2 of 43) [CW-2313/2018]
By the Court:-
Instant petition has been filed by the petitioner, who was working as Director, State Institute of Agriculture Management (SIAM), Durgapura, Jaipur, challenging the enquiry report dt.27.11.2017 submitted by the Chairperson, Working Women Exploitation Prevention Committee. The petitioner has prayed in the writ petition that the respondents-State may be restrained from taking any coercive steps against him on the basis of the enquiry report dt.27.11.2017. The petitioner has further challenged the show cause notice dt.05.01.2018 issued by the Department of Personnel for taking action against him on the basis of the enquiry report dt.27.11.2017. The petitioner while filing the main writ petition, prayed that the respondents if pass any order on the basis of the enquiry report dt.27.11.2017 and the show cause notice dt.05.01.2018, the same may also be taken on record and be declared null and void.
This court had issued notices in the main writ petition and since the State Government appeared as a caveator, time was granted to file reply to the petition.
During pendency of the writ petition, an order dt.12.03.2018 has been passed by the respondents-Department of Personnel imposing penalty of "removal from service" by finding the petitioner guilty of violation of Sections 2(n) and 3(2) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter shall be referred to as 'the Act of 2013') and Rule 25 of the Rajasthan Civil Services (Conduct) Rules, 1971. The petitioner has filed an additional (3 of 43) [CW-2313/2018] affidavit and has brought the order dt.12.03.2018 on record and also challenged the same in the instant petition. The petitioner is said to have attained the age of superannuation on 31.03.2018.
The brief facts of the case are that the petitioner had entered in the services of the State Government as the District Soil Conservation Officer in the year 1987 and he came to be promoted to the post of Assistant Director (Agriculture) in the year 1995. The petitioner was further promoted to the post of Deputy Director (Agriculture) against the vacancy of the year 2001-02 and then to the post of Joint Director (Agriculture) against the vacancy of the year 2006-07. The petitioner was further promoted on the post of Additional Director (Agriculture) against the vacancy of the year 2011-12 and was substantively holding the said post and was posted as Director, State Institute of Agriculture Management (SIAM), Durgapura, Jaipur on 17.10.2014.
The petitioner has pleaded that while he was posted as the Director, State Institute of Agriculture Management (SIAM), Durgapura, Jaipur, he came to be relieved vide order dt.08.09.2017 and was asked to report in the office of the Commissioner, Agriculture Department.
The petitioner has pleaded that he felt aggrieved against the order dt.08.09.2017 and filed S.B.Civil Writ Petition No.16404/2017 before this Court. The Court had passed a stay order on 19.09.2017 and thereafter the stay order was vacated on 12.10.2017.
The petitioner has pleaded that after vacation of stay order, the petitioner stood relieved and was kept under awaiting posting orders in the office of the Commissioner, Agriculture Department. The (4 of 43) [CW-2313/2018] petitioner has further pleaded that to his utmost surprise and dismay, he received a communication dt.02.11.2017 issued under the signatures of the Deputy Director, Agriculture (Chemistry)- cum-Chairperson, Working Women Exploitation Prevention Committee wherein he was informed that certain complaints were received against him by the Principal Secretary (Agriculture) and as such the Committee was asked to inquire into the said complaints.
The petitioner appeared before the Committee i.e. the Chairperson, Working Women Exploitation Prevention Committee on 10.11.2017 and submitted his detailed representation and further gave parawise reply and documents/evidence pertaining to all the three complaints which were filed against him. The petitioner has pleaded in his petition that whatever material was in his possession by way of WhatsApp massage, e-mail, etc., he had handed over the same to the Committee by making it clear that the complaints filed by the female employees against him were frivolous.
The petitioner has alleged that after submitting his reply, he did not hear anything from the Chairperson of the Committee and for the first time he came to know from the correspondent of Dainik Bhaskar on 29.11.2017 about report being prepared by the said Committee and further a news item was published in the daily newspaper Dainik Bhaskar on 30.11.2017 to the effect that the Committee has concluded its report and submitted the same to the Commissioner, Agriculture Department.
The petitioner has pleaded in his petition that after this fact came to his knowledge that the Chairperson of the Committee (5 of 43) [CW-2313/2018] along with other members have submitted its report to the Commissioner, Agriculture Department, he immediately submitted an application on 29.11.2017 under the Right to Information Act making a request to make available a photostat copy of the enquiry report, as submitted by the Chairperson of the Committee, pertaining to all the three complaints of female employees against the petitioner.
The petitioner has pleaded that when he was not supplied the copy of the enquiry report, he filed S.B.Civil Writ Petition No.23595/2017 before this Court and the Court had issued notices on the aforesaid writ petition. The petitioner has pleaded that after the notices being served, reply came to be filed by the respondents-State wherein for the first time, a copy of the enquiry report of the Committee was made available to the petitioner.
The petitioner has pleaded that after filing rejoinder in the aforesaid writ petition, when the matter came up for consideration before the Court on 24.01.2018, since the petitioner had not made a specific prayer to challenge the enquiry report, as such, the counsel for the petitioner withdrew that writ petition with liberty to file fresh writ petition questioning the manner in which the enquiry was initiated against the petitioner and to question other several lacunas and non-adherance to the provisions of the Act of 2013.
The petitioner has pleaded that after the copy of the enquiry report being supplied to him and further a show cause notice being issued by the Department of Personnel, the petitioner has been constrained to file the instant writ petition challenging the (6 of 43) [CW-2313/2018] enquiry report and the show cause notice by making initial prayers in the writ petition, as narrated above in the previous paragraphs.
The petitioner has pleaded in his writ petition that he had not been supplied complete copy of the enquiry report along with list of documents, copies of the statement recorded against him during the course of the enquiry. The petitioner has pleaded that there has been arbitrariness, unreasonableness and vindictive attitude of the Principal Secretary, Agriculture Department as he was directly in confrontation with the petitioner and the same has led to the formation of Committee as well as adverse report being submitted by the Chairperson of the Committee.
The petitioner has pleaded that the Chairperson of the Committee was a junior official than the petitioner, as the Chairperson was of the rank of Deputy Director, while the petitioner was of the rank of Additional Director. The petitioner has pleaded that it was obvious that the person who was lower in hierarchy to the rank to the petitioner, she was bound to be influenced and had to act in command and directions of the Principal Secretary, Department of Agriculture.
The petitioner has pleaded that so far as the first complaint dt.30.08.2017 is concerned, that was addressed to the Chief Minister and the same did not have the signature of any officer and also did not bear the date and, as such, the said complaint was in violation of the circular dt.24.06.2002 issued by the Department of Personnel. The petitioner has pleaded that as per the said circular, the anonymous complaints were not to be entertained as it amounted to waste of time on fabricated and (7 of 43) [CW-2313/2018] frivolous complaint and further it had demoralizing effect on the officer/employee of the State Government.
The petitioner has further pleaded that there were three complaints which were filed by the female employees of the department against him dt.03.10.2017, 03.10.2017 & 04.10.2017. The petitioner has pleaded that initially two statements were recorded by the Principal Secretary, Agriculture Department i.e. one of F-1, Agriculture Officer and another of F-3, Deputy Director (Agriculture) and the perusal of the aforesaid statements revealed that F-1 had submitted a complaint owing to certain recovery being initiated from her salary. The further allegation in the said complaint was with respect to asking the said Officer to accompany the petitioner to a movie and in case she did not go, the recovery was to be effected against her. The identity of the complainants in the present case has not been given in the judgment and they have been referred to as F-1, F-2 & F-3 respectively. Section 16 of the Act of 2013 also prohibits publication of names of such complainants in any manner.
The petitioner has further pleaded in his petition that the complaint which was lodged by F-2 was with respect to an incident of 2014-15 and such allegations had no nexus so far as the provisions of the Act of 2013 are concerned.
The petitioner has pleaded that as far as the mechanism of entertaining the complaint of sexual harassment is concerned, Section 9 of the Act of 2013 provides that aggrieved woman has to make, in writing, a complaint of sexual harassment at workplace to the internal committee within a period of three months from the date of incident and in case of a series of (8 of 43) [CW-2313/2018] incidents, within a period of three months from the date of last incident.
The petitioner has pleaded that the complaints which were made by the employees/aggrieved women against him, were not made directly to the members of the Committee and it was initially an anonymous complaint to the Chief Minister's Officer and further the complaints were entertained by the other Officials of the department including the Principal Secretary as well as the Commissioner, Department of Agriculture.
The petitioner has pleaded that the statements which were recorded of all the three aggrieved female officers were recorded in his absence by the Committee and at no point of time, the petitioner was given any opportunity to cross examine them and further the independent witnesses were also examined in his absence and the petitioner was not afforded any opportunity to cross examine such witnesses. The petitioner has further pleaded that till filing of the writ petition in spite of specific request being made by him, the copies of the statements recorded of such persons were never supplied to him and the same was in violation of Section 11 of the Act of 2013.
The petitioner has pleaded in his writ petition that since the news item was published by the respondents in the newspaper about the report of enquiry being submitted against him, such report could not have been published in media and it was in violation of the mandatory provisions of the Section 16 of the Act of 2013.
The petitioner has pleaded that in the composition of the Committee, to enquire the incident of sexual harassment, there is (9 of 43) [CW-2313/2018] a requirement that one of the members should be Law graduate or having legal knowledge but in the present case, there was no member who was a Law graduate, as such, the entire proceedings were vitiated on account of violation of Section 7(c) of the Act, 2013.
The petitioner has stated in his petition that before filing of the present writ petition, he had every apprehension that the respondents were determined to punish him and on passing of the impugned order of removal from service, his apprehension has turned into a reality and the petitioner has been punished with the severe penalty of "removal from service".
The petitioner has pleaded in his petition that he had rendered unblemished service during his service career and on a frivolous complaint, the petitioner has been visited with the extreme penalty of "removal from service".
The respondents have filed reply to the writ petition and have submitted that the petitioner has been found liable and responsible for misbehaviour, humiliation and harassment of women employees and all the allegations have been found to be proved in the enquiry report dt.27.11.2017 submitted by the Committee to the Principal Secretary, Agriculture Department as well as the Commissioner, Agriculture Department.
The respondents have pleaded that the conduct and character of the petitioner while serving on a responsible post of Government, clearly demonstrate that he did not behave in the manner as is expected from a responsible government servant. The respondents have further pleaded that the report prepared by the Committee has dealt with each and every aspect of the (10 of 43) [CW-2313/2018] complaints and as also the statements of the lady employees and equal opportunity was provided to the petitioner to make his submissions before the Committee. The respondents have placed on record a letter dt.26.12.2017 whereby the Commissioner, Department of Agriculture referred the matter to the Secretary, Department of Personnel for taking appropriate action on the recommendations made by the Committee.
The respondents have pleaded that after the petitioner was communicated by the Chairperson of the Committee vide communication dt.02.11.2017 whereby the petitioner was asked to appear before the Committee on 10.11.2017 and the petitioner himself had submitted a detailed reply to prove his innocence. The respondents have further submitted that so far as the allegation of the petitioner that constitution of Committee was not as per the provisions of the Act of 2013 is concerned, the same is baseless and there was no violation of any of the provisions of the Act of 2013 while constituting the Committee. The respondents have also submitted that the petitioner at no point of time had raised any objection about the constitution of Committee and if he had any such objection and since the petitioner had voluntarily submitted himself before such Committee and after report being given against him, the petitioner is estopped to challenge the constitution of Committee.
The respondents have submitted that as far as the Committee which looked into the complaints against the petitioner is concerned, the same was constituted in the year 2014 and all the members have continuously and consistently inquired into the complaints on earlier occasions also against other employees and (11 of 43) [CW-2313/2018] the said Committee was not constituted for the purpose of looking into the allegations leveled against the petitioner alone. The respondents have pleaded that since the Committee has been constituted on 29.12.2014 and the Committee had its tenure of three years and a new Committee has also been constituted vide office order dt.10.01.2018, as per requirement of the Act of 2013.
The respondents have pleaded that the complaints which were received at the initial stage, were looked into by the department/the respondents and to understand the veracity of the complaints, the Committee was appointed under the Act of 2013 and whereupon the complainants appeared before the Committee and recorded their statements, to which the petitioner could not respond or defend himself in any manner. The respondents have further stated that the allegations against the petitioner were serious and he was habitual in his practice of harassing lady employees in the department on some count or the other.
The respondents have asserted that if the petitioner thought himself to be deprived of the right to defend himself during the enquiry or he was, in any manner, aggrieved of the procedure adopted by the Committee, he could have easily raised objection in this regard but the fact remains that the petitioner neither raised such an issue before the Committee nor submitted any application with regard to the alleged defective procedure being adopted by the Committee and the petitioner participated in the entire process of the enquiry and recorded his statement, responded to the show cause notice and as such it is too late in the day to make a grievance about the procedure being not followed.
(12 of 43) [CW-2313/2018] The respondents submitted that as far as review filed by the petitioner before the Committee against its report is concerned, once the report was submitted to the Commissioner, Agriculture Department on 27.11.2017, the said Committee became functus officio and as such after conclusion of the enquiry, there was no provision of seeking review of the report of the Committee.
The respondents have further pleaded that after the report being sent to the Department of Personnel, the petitioner was issued letter dt.05.01.2018 by the Department of Personnel and reminder dt.24.01.2018 and the petitioner meanwhile approached this Court seeking protection on the basis of the report of the Committee which was already sent to the Department of Personnel for taking appropriate action.
The respondents have pleaded that the allegations against the Principal Secretary, Department of Agriculture, are baseless and the said Officer had no say or connection with the misconduct committed by the petitioner which has duly been proved in the enquiry, which was conducted against the petitioner. The respondents have further submitted that the petitioner has created a concocted story in the petition that since he asked the Principal Secretary to pay the charges of Guest House, as such, due to taking action against the Principal Secretary, on account of unauthorized stay in the Guest House, the entire process was initiated hence no credence can be attached to such frivolous assertion made in the petition.
Mr.Virendra Lodha, learned Senior Counsel for the petitioner has made following legal submissions in support of the case of the petitioner:-
(13 of 43) [CW-2313/2018]
(1) There has been a violation of the provisions of the Act
of 2013 and Rules framed thereunder, as the complaints filed by the complainants/lady Officer against the petitioner, was not directly submitted to the Committee and the complaint was procured in the Chief Minister's Office. The complaints which were filed in the Office of the Principal Secretary, Agriculture Department, could not have been entertained by the Committee except by way of filing such complaints in personal capacity before the said Committee. The Committee was prevented from taking cognizance until the same was filed before them and no authority/office can send the complaints to the said Committee and the statutory requirement of law not being followed, it vitiates the very initiation/entertainment of the complaint by the Committee.
(2) The composition of Committee is illegal and a person lower in rank than the petitioner had been made the Chairperson of the said Committee and as such the person who is lower in rank, cannot conduct enquiry against the petitioner. The petitioner was holding the post of Additional Director on substantive basis and he was Director, SIAM, Durgapura, Jaipur whereas the Chairperson of the Committee was Deputy Director. The other departmental employees/members of the Committee were subordinate to the petitioner and the Chairperson was not of senior level, as per the requirement of law.
Mr.Lodha has further submitted that the other members of the Committee were not having the legal knowledge and as such the composition of Committee, was not as per the requirement of law and the same stood vitiated.
(14 of 43) [CW-2313/2018] Mr.Lodha further submitted that one member from NGO, did not attend the meeting when the report was submitted and in her absence, the report of the Committee is not properly considered report by all members.
(3) There has been a violation of Section 16 of the Act of 2013 as the publication of enquiry proceedings, is in violation of the mandatory requirement of Section 16. The respondents have gone public about the alleged incident and the petitioner's name being given in the Press, the same is in violation of dignity of the petitioner.
(4) The enquiry which was conducted by the Committee, is against the principles of natural justice as the petitioner had not been given any opportunity to cross examine the complainants and independent witnesses and petitioner was not given the copies of statements as well. The procedure adopted is illegal & unfair.
(5) The findings of enquiry Committee are perverse and do not inspire confidence to hold the petitioner guilty of the charges leveled against him. The enquiry into the act or behaviour of sexual harassment, as per Section 2(n) of the Act of 2013, did not make out a case against the petitioner even from the bare reading of the allegations leveled against him. The petitioner never directly nor by implication has done any unwelcoming act or behaviour which may be termed as an act of sexual harassment.
Mr.Lodha has submitted that the complaints were hopelessly time barred and no complaint was filed within three months of the alleged incident.
Mr.Lodha has submitted that the first complaint was submitted on 30.08.2017 to the Chief Minister and it did not make (15 of 43) [CW-2313/2018] any mention of a particular incident which could be termed as sexual harassment and the said complaint was bearing no date and signature. The complaint submitted by F-1 - complainant, was dt.03.10.2017 which was addressed to the Principal Secretary, Agriculture Department and this complaint also narrated a false allegation which is said to have taken place in April 2017. The third complaint was filed by one F-2 on 03.10.2017 and it was also addressed to the Principal Secretary, Agriculture Department and the alleged act of the petitioner is said to have taken place from September, 2013 to March, 2015. The fourth complaint was sent by one F-3 dt.04.10.2017, to the Principal Secretary, Agriculture Department and she also narrated the alleged incident of sexual harassment of the year 2014-15.
Mr.Lodha submitted that from no stretch of imagination, the said complaints can fall in the time limit, in which action, can be initiated under the Act of 2013.
Mr.Lodha submitted that the impugned order of removal from service, has been passed in most arbitrary manner and without considering the nature of penalty which has been imposed against the petitioner.
Mr.Lodha has submitted that once the CCA Rules, 1958 are made applicable by terming the sexual harassment as 'misconduct', as per the Conduct Rules, 1971, the disciplinary authority is required to follow the Rule 14 of CCA Rules, 1958 relating to imposition of penalty and sufficient & good reasons are required to be recorded, as to why the particular punishment has been imposed against the delinquent.
(16 of 43) [CW-2313/2018] Mr.Lodha has submitted that the respondents have acted in most arbitrary manner as the unblemished service of the petitioner, has not been taken into account and he has been removed from service and petitioner is on verge of retirement, as he would attain the age of superannuation on 31.03.2018.
Mr.Lodha has submitted that even as per the provisions of the Act of 2013, there are several different punishments which can be imposed and the authority has to record its reasons for awarding a particular penalty, which has not been done in the present case.
Mr.Lodha submitted that this court, under Article 226 of the Constitution of India can consider the quantum of punishment of removal from service, which is imposed against the petitioner and his entire family has to suffer on account of severe punishment, in spite of the satisfactory services rendered by the petitioner. Moreover, minor penalty could have been imposed, if at all, the petitioner was found guilty of the charges leveled against him.
Mr.Lodha in support of his contention has relied upon the following judgments:-
1. Apparel Export Promotion Council Vs. A.K.Chopra reported in (1999) 1 SCC 759.
2. Kumaon Mandal Vikas Nigam Ltd. Vs. Girja Shankar Pant & Ors. reported in (2001) 1 SCC 182.
3. Shri Bhagwan Lal Arya Vs. Commissioner of Police, Delhi & Ors. reported in (2004) 4 SCC 560.
4. State of Uttar Pradesh & Ors. Vs. Saroj Kumar Sinha reported in (2010) 2 SCC 772.
(17 of 43) [CW-2313/2018]
5. Madras High Court judgment in the case of N.Mahadevan Vs. The Joint Director of School Education & Anr. [WP No.23266 of 2008 & MP No.2 of 2008] decided on 01.11.2017.
6. State of Uttar Pradesh Vs. Mohd. Sharif (Dead) Through LRs.
reported in (1982) 2 Supreme Court Cases 376.
7. Om Kumar & Ors. Vs. Union of India reported in (2001) 2 SCC 386.
8. State of Tripura & Ors. Vs. Naresh Chandra Das reported in (2007) 15 SCC 759.
9. State of Uttar Pradesh & Ors. Vs. Ram Daras Yadav reported in (2010) 2 SCC 236.
10. Division Bench judgment of the Punjab & Haryana High Court in the case of the Punjab Land Development and Reclamation Corporation Ltd. Vs. The Presiding Officer, Labour Court, UT Chandigarh & Anr. reported in 2001 (1) SLR 467. Per contra, Mr.J.M.Saxena, Additional Advocate General, has submitted that taking note of the serious nature of charges, all the written complaints were sent to the Committee and the Committee was within its domain to entertain such complaints.
Mr.Saxena submitted that the allegations of not filing complaints before the Committee itself, is of no significance, once the complete enquiry has been conducted and the petitioner has been provided full opportunity to defend himself.
Mr.Saxena has further submitted that it is the petitioner himself, who had gone to media and he himself addressed a Press Conference about the allegations leveled against him and report being prepared against him. Mr.Saxena submitted that it is the (18 of 43) [CW-2313/2018] petitioner, who has violated the mandatory requirement and he himself has to blame for the same.
Mr.Saxena has submitted that as far as limitation of taking cognizance of complaint is concerned, report/complaint was received in the office of the Chief Minister in the month of August, 2017 and further the individual employees have also filed their complaints, within the stipulated time.
Mr.Saxena submitted that F-1 has specifically alleged the acts of sexual harassment being committed by the petitioner in the month of May, June & July, 2017. He has submitted that the complainant F-2 has narrated the last incident of the month of July, 2017 and further F-3 has alleged that the incident has taken place in January, 2017. Mr.Saxena submitted that though there is a requirement of three months old incident to inquire into the acts of misconduct by the Committee, however, there is a power also vested with the Committee that they can entertain the complaints beyond the time prescribed under the provisions of the Act of 2013. Mr.Saxena submitted that the petitioner cannot say that the Committee does not have the power to entertain complaints beyond three months.
Mr.Saxena submitted that composition of Committee, was as per the requirement of the Act of 2013 and the Committee, which was constituted in the year 2014, had its statutory period and it was not specifically constituted for considering the complaints against the petitioner. Mr.Saxena submitted that the Committee which was constituted has considered the case of other employees as well, in respect of the cases of sexual harassment and as such (19 of 43) [CW-2313/2018] the said Committee was having full competence to inquire into the allegations leveled against the petitioner.
Mr.Saxena submitted that the petitioner, cannot be permitted to allege violation of principles of natural justice. He has submitted that the petitioner himself in paragraph-2 of the writ petition has made an averment that he appeared before the Committee and submitted his reply and documents.
Mr.Saxena submitted that in paragraph-4 of the writ petition, the petitioner himself has stated that he had given statement to the Press and paragraph-6 of the petition, makes a specific averment with regard to the copy of enquiry report being made available to him. Mr.Saxena submitted that the Committee had given full audience to the petitioner during the course of enquiry and no principle of natural justice has been violated.
Mr.Saxena has submitted that a bare reading of conclusion drawn by the Committee, clearly shows that the petitioner was not behaving in a responsible manner and the direct/indirect acts which he has committed against his colleagues/female employees, constitute serious act of misconduct and as such the petitioner has been appropriately punished.
Mr.Saxena has further submitted that constitution of Committee, was never challenged by the petitioner at any point of time and moreover there has been no violation of any provisions of the Act of 2013, while nominating a Deputy Director as the Chairperson of the Committee.
Mr.Saxena submitted that Committee is having jurisdiction over all the employees in the department and it is not constituted as per the hierarchy of the post and the petitioner in no manner has (20 of 43) [CW-2313/2018] been prejudiced on account of constitution of Committee. Mr.Saxena has further submitted that the quorum of the Committee as per the requirement of law, was maintained and as such no violation of any of the provisions of the Act of 2013 or Rules made thereunder, have taken place.
I have heard counsel for the parties and with their assistance, perused the material on record.
This court before deciding the merits of the case, deems it proper to quote the relevant provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which are as follows:-
"2. Definitions.- In this Act, unless the context otherwise requires,
(a) to (m) XX XX XX XX
(n) "sexual harassment" includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely -
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv)showing pornography; or
(v) any other unwelcome physical, verbal or non-
verbal conduct of sexual nature."
4. Constitution of Internal Complaints Committee.- (1)Every employer of a workplace shall, by an order in writing, constitute a Committee to be known as the "Internal Complaints Committee":
Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the Internal Committee shall be constituted at all administrative units or offices.
(2) The Internal Committee shall consist of the following members to be nominated by the employer, namely-
(21 of 43) [CW-2313/2018]
(a) a Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees:
Provided that in case a senior level woman employee is not available, the Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in sub-section (1):
Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organisation:
(b) not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge;
(c) one member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment:
Provided that at least one-half of the total Members so nominated shall be women.
(3) The Presiding Officer and every Member of the Internal Committee shall hold office for such period, not exceeding three years, from the date of their nomination as may be specified by the employer.
(4) The Member appointed from amongst the non-
governmental organisations or associations shall be paid such fees or allowances for holding the proceedings of the Internal Committee, by the employer, as may be prescribed.
(5) Where the Presiding Officer or any Member of the Internal Committee,-
(a) contravenes the provisions of section 16; or
(b) has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him; or
(c) he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or
(d) has so abused his position as to render his continuance in office prejudicial to the public interest, (22 of 43) [CW-2313/2018] such Presiding Officer or Member, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section.
9. Complaint of sexual harassment (1) Any aggrieved woman may make, in writing, a complaint of sexual harassment at work place to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident:
Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing:
Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit not exceeding three months, if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.
(2) Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.
11. Inquiry Into complaint (1) Subject to the provisions of section 10, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code, and any other relevant provisions of the said Code where applicable:
Provided that where the aggrieved woman informs the Internal Committee or the Local Committee, as the case may be, that any term or condition of the (23 of 43) [CW-2313/2018] settlement arrived at under sub-section (2) of section 10 has not been complied with by the respondent, the Internal Committee or the Local Committee shall proceed to make an inquiry into the complaint or, as the case may be, forward the complaint to the police:
Provided further that where both the parties are employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee.
(2) Notwithstanding anything contained in section 509 of the Indian Penal Code, the court may, when the respondent is convicted of the offence, order payment of such sums as it may consider appropriate, to the aggrieved woman by the respondent, having regard to the provisions of section 15.
(3) For the purpose of making an inquiry under sub-
section (I), the Internal Committee. or the Local Committee, as the case may be, 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.
4. The inquiry under sub-section (I) shall be completed within a period of ninety days.
13. Inquiry report.
(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 often 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.
(24 of 43) [CW-2313/2018] (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:
Provided 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:
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.
16. Prohibition of publication or making known contents of complaint and inquiry proceedings.- Notwithstanding anything contained in the Right to Information Act, 2005, the contents of the complaint made under section 9, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner:
Provided that information may be disseminated regarding the justice secured to any victim of sexual harassment under this Act without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses.
(25 of 43) [CW-2313/2018]
17. Penalty for publication or making known contents of complaint and inquiry proceedings.-
Where any person entrusted with the duty to handle or deal with the complaint, inquiry or any recommendations or action to be taken under the provisions of this Act, contravenes the provisions of section 16, he shall be liable for penalty in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist, in such manner as may be prescribed."
The relevant provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (hereinafter shall be referred to as 'the Rules, 2013') are also reproduced as follows:-
"6. Complaint of sexual harassment.- For the purpose of sub-section (2) of Section 9, -
(i) where the aggrieved woman is unable to make a complaint on account of her physical incapacity, a complaint may be filed by -
(a) her relative or friend; or
(b) her co-worker; or
(c) an officer of the National Commission for Women or State Women's Commission; or
(d) any person who has knowledge of the incident, with the written consent of the aggrieved woman;
(ii) where the aggrieved woman is unable to make a complaint on account of her mental incapacity, a complaint may be filed by -
(a) her relative of friend; or
(b) a special educator; or
(c) a qualified psychiatrist or psychologist; or
(d) the guardian or authority under whose care she is receiving treatment or care; or
(e) any person who has knowledge of the incident jointly with her relative or friend or a special educator or qualified psychiatrist or psychologist, or guardian or authority under whose care she is receiving treatment or care;
(iii) where the aggrieved woman for any other reason is unable to make a complaint, a complaint may be filed by (26 of 43) [CW-2313/2018] any person who has knowledge of the incident, with her written consent;
(iv) where the aggrieved woman is dead, a complaint may be filed by any person who has knowledge of the incident, with the written consent of her legal heir.
7. Manner of inquiry into complaint.- (1) Subject to the provisions of section 11, at the time of filing the complaint, the complainant shall submit to the Complaints Committee, six copies of the complaint along with supporting documents and the names and addresses of the witnesses.
(2) On receipt of the complaint, the Complaints Committee shall send one of the copies received from the aggrieved woman under sub-rule (1) to the respondent within a period of seven working days. (3) The respondent shall file his reply to the complaint along with his list of documents, and names and addresses of witnesses, within a period not exceeding ten working days from the date of receipt of the documents specified under sub-rule (1).
(4) The Complaints Committee shall make inquiry into the complaint in accordance with the principles of natural justice.
(5) The Complaints Committee shall have the right to terminate the inquiry proceedings or to give an ex-parte decision on the complaint, if the complainant or respondent fails, without sufficient cause, to present herself or himself for three consecutive hearings convened by the Chairperson or Presiding Officer, as the case may be:
Provided that such termination or ex-parte order may not be passed without giving a notice in writing, fifteen days in advance, to the party concerned. (6) The parties shall not be allowed to bring in any legal practitioner to represent them in their case at any stage of the proceedings before the Complaints Committee. (7) In conducting the inquiry, a minimum of three Members of the Complaints Committee including the Presiding Officer or the Chairperson, as the case may be, shall be present.
9. Manner of taking action for sexual harassment.- Except in cases where service rules exist, where the Complaints Committee 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, to take any action including a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or (27 of 43) [CW-2313/2018] increments, terminating the respondent from service or undergoing a counselling session or carrying out community service."
The State of Rajasthan has also added Rule 25-AA in the Rajasthan Civil Services (Control) Rules, 1971 by making a specific provision to restrain the Government servant to indulge in any act of sexual harassment of any woman at work place. The Rule 25-AA of the Conduct Rules, 1971 is reproduced as under:-
"25-AA. Prohibition of sexual harassment of working women. - (1) No Government servant shall indulge in any act of sexual harassment of any woman at her work place.
(2) Every Government servant who is incharge of a work place if brought to his cognigence shall take appropriate steps to prevent sexual harassment to any woman at such work place.
Explanation. - For purpose of this rule, "sexual harassment" includes such unwelcome sexual determined behaviour, whether directly or otherwise as:-
(a) physical contact and advances;
(b) demand or request for sexual favours;
(c) sexually coloured remarks;
(d) showing any pornography; or
(e) any other unwelcome physical, verbal or non-
verbal conduct of a sexual nature."
The State of Rajasthan has further inserted Rule 18A in the Rajasthan Civil Services (CCA) Rules, 1958 whereby a special procedure in the case of sexual harassment of working women at work place, has been provided. The Rule 18A of the CCA Rules, 1958 is quoted hereunder:-
"18A. Special procedure in cases of sexual harassment of working women at work places.- Notwithstanding anything contained in rules 16, 17 and 18, if there is a complaint of sexual harassment within the meaning of rule 25AA of the Rajasthan Civil Services (Conduct) Rules, 1971, the Complaint Committee established in each department/ Office for enquiring into (28 of 43) [CW-2313/2018] such complaint, shall be deemed to be an enquiry authority and the report for the purpose of these rules. The Disciplinary Authority will act on the said enquiry report in accordance with these rules. The Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the enquiry into the Complaint of sexual harassment, the enquiry as far as practicable in accordance with the procedure laid down these rules."
The relevant sub-rule 6(a) of Rule 16 of the CCA Rules, 1958 is quoted hereunder:-
"(6) (a) Where the Government Servant has pleaded not guilty to the charges, at the commencement of the enquiry, the Inquiring Authority shall ask the Presenting Officer appearing on behalf of the Disciplinary Authority to submit the list of witnesses and documents within 10 days, who shall also simultaneously send a copy to the Government Servant. Delinquent Officer, within ten days of the receipt of the list of prosecution witness and documents, shall submit the list of documents required by him for his defence. The Inquiring Authority shall then summon the documents of both sides and ask the parties to admit or deny them. It shall then summon such evidence as is necessary, giving opportunity to the presenting officer for examination-in-
chief and also to the Government Servant or his assisting officer, whosever may be present, for crossexamination. The Presenting Officer shall be entitled to re-examine the witness on any point on which they have been cross- examined but not on any new matter, without the leave of the Inquiring Authority, after the close of the prosecution evidence the Government Servant shall be called upon to submit the list of the witnesses within 10 days which he would like to produce in his defence. The Inquiring Authority after considering the relevancy of the witnesses and the documents shall summon only the relevant witnesses and the documents and record the evidence thereof, while giving opportunity of Examination-in-Chief and cross- examination/re-examination to the parties and then close the evidence. The Inquiring Authority shall consider the relevancy of the witnesses and the documents called for by both the parties and in case of his refusal to summon any witnesses or documents, he shall record the reason in writing. The Inquiring Authority may also put such questions to the witnesses of the parties, as it thinks fit, in the interest of justice. An opportunity for hearing the arguments shall be given to the parties.
Note:- If the Government Servant applied orally or in writing for the supply of copies of the statement of witnesses mentioned in the list referred to in sub-rule(6)
(a), the Inquiring Authority shall furnish him with such copies as early as possible and in any case not later than (29 of 43) [CW-2313/2018] three days before the commencement of the examination of the witnesses on behalf of the Disciplinary Authority." The first objection of the learned counsel for the petitioner is of entertaining the complaints not through proper channel or directly before the Committee, this court finds that the proceedings of the Committee show that the Commissioner, Agriculture Department had sent letter dated 23.10.2017 in a sealed envelope containing complaints of three female Officers. The letter of Commissioner, Agriculture Department also made a reference of a communication dated 17.10.2017 issued by the Joint Secretary, Agriculture (Group-I) Department whereby three female Officers had filed the complaints against the petitioner. The Committee on 25.10.2017 opened the sealed envelope and all the three complainants were asked to remain present before the Committee on 31.10.2017. It is reflected from the proceedings of the Committee that F-1 appeared before the Committee on 31.10.2017 and she gave her written statement and also narrated the incident which is said to have taken place. The Committee further recorded that F-3 appeared before them with a written letter and further stated that the complaints which she had filed to the Principal Secretary, Department of Agriculture on 01.10.2017 and 04.10.2017, may be treated as her statement. Both the complainants i.e. F-1 & F-3 further stated before the Committee that they did not want to produce any other witness. The Committee has further recorded that F-2 appeared on 01.11.2017 before them and she also gave her written statement and produced the copies of letter written by her. The Committee after recording the statements of F-1, F-2 & F-3 sent, the copies of the (30 of 43) [CW-2313/2018] complaints received against the petitioner and he was asked to appear before the Committee on 10.11.2017.
A perusal of Section 9(1) of the Act of 2013 shows that any aggrieved woman may make a complaint in writing of sexual harassment at work place to the Internal Committee or to a Local Committee. Proviso to Section 9(1) of the Act of 2013 provides that if such complaint is not made in writing, the Presiding Officer or any Member of the Internal Committee, shall render all reasonable assistance to the woman for making the complaint in writing. Section 9(2) of the Act of 2013 further provides that where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person, as may be prescribed, may make a complaint under this Section.
Rule 6 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 also provides that apart from the aggrieved woman, the complaint can be filed by her relative or friend or by co-worker or by an Officer of the National Commission for Women or State Women's Commission or any person who has the knowledge of the incident, with the written consent of the aggrieved woman. Sub-rule (3) of Rule 6 provides that where the aggrieved woman for any other reason apart from physical incapacity or mental incapacity is unable to make a complaint, the complaint can be filed by any person who has the knowledge of the incident, with her written consent. The purpose of Section 9 of the Act of 2013 and Rules, 2013 made thereunder is to have a complaint before the Committee and it is (31 of 43) [CW-2313/2018] not mandatory that the aggrieved woman herself has to file the complaint in person.
This court finds that even if the complaints were initially either addressed to the Office of the Chief Minister or to the Principal Secretary, Department of Agriculture, once the said complaints were sent to the Committee and the aggrieved women (F-1, F-2 & F-3) appeared before the Committee and recorded their statement pertaining to sexual harassment, it cannot be said that the Committee was not within its domain to take cognizance of such complaints and as such the procedure adopted by the Committee cannot be said to be vitiated on account of violation of the provisions of the Act of 2013 and the Rules, 2013 framed thereunder. The submission of Mr.Lodha does not merit acceptance as the filing of complaint in personal capacity by the complainant is not mandatory, as per the scheme of the Act of 2013 and the Rules, 2013 framed thereunder.
The submission of the learned counsel for the petitioner that composition of Committee was illegal as person lower in rank than the petitioner had been made the Chairperson, this court finds that Section 4 of the Act of 2013 provides for constitution of Internal Complaints Committee. A perusal of sub-section (2) of Section 4 of the Act of 2013 clearly provides that a Presiding Officer should be a woman employed at a senior level at work place from amongst the employees. There is a further provision that in case a senior level woman employee is not available, the Presiding Officer is required to be nominated from other offices or administrative units of the work place. There is a further provision that in case other offices or administrative units of the work place (32 of 43) [CW-2313/2018] do not have a senior level woman employee, the Presiding Officer will be nominated from any other workplace of the same employer or other department or organization.
In the instant case, this court finds that the Chairperson of the Committee was a senior level Officer and no illegality can be attached to her appointment as Presiding Officer. It is also important to note that the said Committee was constituted in the year 2014 for a term of three years, as per the requirement of Section 4(3) of the Act of 2013. The said Committee has looked into different complaints received against the employees of the department from time to time and the Committee was not constituted only for the purpose of investigating the complaint lodged against the petitioner alone. The blame of the petitioner that a junior Officer in rank, has conducted enquiry against him has no substance.
The submission of Mr.Lodha is also not acceptable for the reason that the Committee cannot be constituted as per the hierarchy of the officials against whom complaints are received of committing sexual harassment. The only requirement is that there has to be woman employed at a senior level. The other members are also part of the Committee who are amongst the employees who are committed to the cause of women or who have experience in social work or have legal knowledge. The said Committee once constituted in the year 2014 and which had performed its function dealing with the complaints of sexual harassment, it cannot be said that the petitioner being an Officer of the cadre of Additional Director, could not have been put to the (33 of 43) [CW-2313/2018] enquiry by a Committee presided over by a senior level woman employee.
If the submission of Mr.Lodha is to be accepted, the composition and constitution of Internal Complaints Committee will always be dependent on the rank of the person against whom such complaint is to be examined. The purpose of constituting Internal Complaints Committee as per the requirement of Section 4 of the Act of 2013 has been to appoint a Committee for a tenure of three years to look into the complaints received against the employees from time to time committing the act of sexual misconduct. Once a Committee is constituted as per Section 4 of the Act of 2013, there cannot be change of Presiding Officer as per rank of official against whom charge of sexual harassment is framed.
So far as the submission of Mr.Lodha that since the members of the Committee were not having legal knowledge, the Committee is to be vitiated on account of violation of sub-section (2)(b) of Section 4 of the Act of 2013, is concerned, this court finds that the authority/State Government is required to nominate two members from amongst the employees preferably committed to the cause of women or who have the experience in social work or have legal knowledge and since the word 'preferably' is there, it cannot be construed that any person having no legal knowledge will not be able to be a member of the Committee.
The submission of Mr.Lodha that since one member of NGO did not attend the meeting when the report was submitted, is liable to be rejected, as on the date of submitting the report, if (34 of 43) [CW-2313/2018] member of NGO was not present, the said report cannot be vitiated.
The perusal of sub-rule (7) of Rule 7 of the Rules, 2013 would reflect that in conducting the enquiry, a minimum of three members of the Complaints Committee including the Presiding Officer or the Chairperson, as the case may be, shall be present. A perusal of the enquiry report, in the case in hand, shows that there were as many as five members who had prepared the enquiry report and have submitted the same to the authority concerned for taking further action. The allegation of the petitioner that due to non-participation of one of the member of NGO, the enquiry report stands vitiated, cannot be accepted in view of the present of more than three persons, as required under sub-rule (7) of Rule 7 of the Rules, 2013.
The submission of Mr.Lodha that there has been a violation of Section 16 of the Act of 2013 as the enquiry proceedings were published in the newspaper and the respondents have gone public about the alleged incident and name of the petitioner was given in the Press, this court finds that the respondents have seriously disputed that the petitioner himself had called the Correspondent of daily newspaper Dainik Bhaskar and it is the petitioner who had gone to the Press and got the news published about the report being prepared by the Committee. This court finds that without going into the question as whether there has been a violation of Section 16 of the Act of 2013, the Act of 2013 provides penalty under section 17 for publication or making known contents of complaint and enquiry proceedings and, in the instant case, publication or knowledge of enquiry proceedings being circulated (35 of 43) [CW-2313/2018] in the Press, may not vitiate the orders which have been passed by the respondents and the only remedy available to the person aggrieved is to invoke Section 17 of the Act of 2013.
The submission of Mr.Lodha that the finding recorded by the enquiry Committee is perverse and did not inspire confidence to hold the petitioner guilty as no case was made out of committing sexual harassment against the petitioner, as per Section 2(n) of the Act of 2013, this court while exercising the writ jurisdiction, cannot give its own finding in respect of the charges which were leveled against the Government servant. The Committee, if in its wisdom, has considered the entire facts and has recorded the finding, the court will not be in a position to substitute its own opinion.
The Apex Court has time and again defined the parameters where the High Court should not interfere in the findings of fact in the departmental enquiry unless such findings are based on no evidence or are wholly perverse and/or legally untenable. The High Court cannot function as an appellate authority and substitute its own conclusion as to the guilt of the delinquent. It is further reiterated by the Apex Court that the question of adequacy of evidence is outside its perview. It is also settled law that the judicial review is not concerned with the correctness of the decision but is confined to the examination of the decision making process as to whether the established principles of law and Rules of natural justice and fairness have been followed or not. The Apex Court has time and again laid down the principle that review court cannot substitute its opinion for that of the administrative authority. This court finds that the findings of the enquiry (36 of 43) [CW-2313/2018] Committee which have been recorded cannot be commented upon and the court will not be able to substitute its finding on the report of the Committee.
The submission of the learned counsel for the petitioner that the enquiry has been conducted by the Committee against the principles of natural justice as the petitioner has not been given any opportunity to cross examine the complainants and other witnesses and he was also not supplied copies of the statements of these witnesses, this court deems it proper to consider and look into the provisions relating to holding of enquiry by the employer in respect of committing misconduct of sexual harassment against woman employees at work place.
The perusal of Rule 25-AA of the Conduct Rules, 1971 makes it very clear that there is a prohibition of sexual harassment of working women and if any Government servant indulges in any act of sexual harassment of any woman at her work place, the same is a misconduct. The court further finds that there has been an amendment in the CCA Rules, 1958 and Rule 18-A has been inserted by the Government notification dated 14.02.2006 whereby the special procedure in the cases of sexual harassment of working women at work place has been introduced. A perusal of Rule 18A of the CCA Rules, 1958 would show that the Complaints Committee which are established in each department/Office for enquiring into the complaints of sexual harassment, is deemed to be an enquiry authority and the report of the said Committee shall be deemed to be an enquiry report for the purpose of the CCA Rules, 1958. The Disciplinary Authority is further required to act on the said enquiry report in accordance with these Rules. The (37 of 43) [CW-2313/2018] Complaints Committee is required to hold the enquiry as far as practicable in accordance with the procedure laid down in the CCA Rules, 1958 unless separate procedure has been prescribed for the Complaints Committee for holding the enquiry into the complaints of sexual harassment. This court finds that Section 11 of the Act of 2013 provides that Internal Committee is to proceed to make enquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent which is a Government employee and if there are no service Rules, then in such manner as may be prescribed.
In the present case, the court finds that the petitioner is an employee of the Government and as per the requirement of Section 11 of the Act, 2013 the Committee had to make enquiry into the complaint in accordance with the provisions of the CCA Rules, 1958. This court finds that the respondents have themselves followed the CCA Rules, 1958 and accordingly they have passed the impugned order.
This court further finds that sub-rule (4) of Rule 7 of the Rules, 2013 provides that the Complaints Committee shall make enquiry into the complaint in accordance with the principles of natural justice. The requirement, as per Section 18A of the CCA Rules, 1958, is to hold enquiry into the complaint as far as practicable in accordance with the procedure laid down in the CCA Rules, 1958.
Rule 16 of the CCA Rules, 1958 provides procedure for imposing major penalties and once the enquiry officer/authority is appointed, sub-rule 6(a) of the Rule 16 of the Rules, 1958 provides the procedure in what manner the enquiry officer would (38 of 43) [CW-2313/2018] proceed. The perusal of sub-rule 6(a) of the Rule 16 of the Rules, 1958 clearly shows that the enquiry officer has the authority to ask the presenting Officer appearing on behalf of the Disciplinary Authority to submit the list of witnesses & documents and the same shall be sent simultaneously to the Government servant. The delinquent Officer after receipt of list of the prosecution witnesses & documents is required to submit the list of documents required by him for his defence. The Enquiry Authority has to then summon the documents of both the sides and ask the parties to admit or deny the same. The Enquiry Officer, thereafter is required to summon evidence as is necessary, giving opportunity to the presenting officer for examination-in-chief and also to the Government servant or his assisting officer, whosoever is present, for cross examination. The presenting Officer is further entitled to re-examine the witness on any point on which they have been cross-examined. After the close of prosecution evidence, the Government servant is required to be called upon to submit the list of the witnesses within ten days and after considering the relevancy of the witnesses and the documents, the evidence is to be recorded by the Enquiry Officer while giving opportunity of examination-in-chief and cross-examination/ re-examination to the parties and then close the evidence.
This court finds that as per Rule 18A of the CCA Rules, 1958, the Complaints Committee was required to follow the procedure in accordance with the CCA Rules, 1958 at least to the extent of enquiry as far as practicable as per the CCA Rules, 1958. This court finds that the Committee recorded the statements of complainants on different dates i.e. 31.10.2017 & 01.11.2017 in (39 of 43) [CW-2313/2018] absence of the petitioner. The petitioner has not been extended any opportunity to cross-examine them. The said procedure followed by the Committee cannot be said to be in consonance with Rule 18A of the CCA Rules, 1958. The language and intent of Rule 18A of the CCA Rules, 1958 clearly shows that the enquiry report which is prepared by the Committee is to be prepared by them by following the procedure. The Complaints Committee has to follow the procedure of the enquiry as far as practicable in accordance with the procedure laid down in the CCA Rules, 1958, the said Rule does not specifically say that the entire procedure as provided under the CCA Rules, 1958 is to be followed but nevertheless, the intention seems to be that the enquiry should be conducted in such a manner where principle of natural justice is being followed. This court finds that if there is a specific provision under Rule 18A of the CCA Rules, 1958, the Complaints Committee at least ought to have followed the broad principles of giving an opportunity to the delinquent/ petitioner to at least cross examine the complainants and other two witnesses who where examined in his absence and the petitioner was denied this opportunity. This court finds that the respondents have not come out with a case that any separate procedure had been prescribed for the Complaints Committee for holding the enquiry into the complaint of sexual harassment.
This court further finds that sub-rule (4) of Rule 7 of the Rules, 2013 further provides the manner of enquiry into the complaint and it specifically says that the Complaints Committee shall make enquiry into the complaints in accordance with the principles of natural justice, this Court finds that even as per the (40 of 43) [CW-2313/2018] Rules of 2013, the Committee has to follow the principles of natural justice.
In the instant case, the Committee called the complainants in absence of the petitioner and recorded their statements. The petitioner was also called to given his representation or to submit his defence, however, this opportunity cannot be termed in consonance with the requirement of principles of natural justice. It is found that serious charges of sexual harassment are leveled against the delinquent employee, he is required to be given a reasonable opportunity to get the right of at least putting cross questions to the complainants in order to reach to the conclusion as to whether such misconduct had taken place or not. It is also with the purpose of eliciting truth from the complainant as to whether such act has taken place or not and whether the gravity or allegation of such charges stand scrutiny of truthfulness or not. In the opinion of the court, either going by the Rule 18A of the CCA Rules, 1958 or considering the provisions of Section 11 of the Act of 2013 and sub-rule (4) of Rule 7 of the Rules of 2013, the respondents have committed illegality in conducting the enquiry and there has been a fault in conducting enquiry and as such the petitioner has been denied the right to defend himself and violation of principles of natural justice has taken place.
This court finds that the procedure which has been evolved by the Committee is not in consonance with the rules of natural justice and such procedure cannot be termed fair. The Apex Court in the case of Additional District and Sessions Judge 'X' Vs. Registrar General, High Court of Madhya Pradesh and Ors. reported in (2015) 4 SCC 91 has considered the issue of enquiring (41 of 43) [CW-2313/2018] into the allegation of sexual harassment against sitting Judges of High Court and in the manner in which 'In-House Procedure' is to be invoked. The Apex Court in the judgment has observed as follows:-
"46.1 Through the first stage, the prima facie veracity of the allegations, contained in the complaint is ascertained. If so, whether a deeper probe is called for. The first stage does not contemplate an in-depth examination of the allegations. It requires merely an assessment based on the contents of the complaint, and the response of the concerned judge. All that the Chief Justice of the High Court is required to do, is to determine whether a deeper probe is required. This is to be done, on the basis of a logical assessment made on a consideration of the response of the concerned Judge (with reference to the allegations levelled in the complaint).
46.2 It is the second stage of the "in-house procedure", relating to sitting judges of High Courts, which could lead to serious consequences. The second stage is monitored by none other, than the Chief Justice of India. Only if the Chief Justice of India endorses the view expressed by the Chief Justice of the High Court, that a deeper probe is called for, he would constitute a "three-member Committee", and thereby take the investigative process, to the second stage. This Committee is to comprise of 6 Page 61 two Chief Justices of High Courts (other than the concerned High Court), besides a Judge of a High Court. The second stage, postulates a deeper probe. Even though the "three-member Committee" is at liberty to devise its own procedure, the inherent requirement provided for is, that the procedure evolved should be in consonance with the rules of natural justice. Herein, for the first time, the authenticity of the allegations, are to be probed, on the basis of an inquiry. The incumbents of the "three-member Committee", would have no nexus, with the concerned judge. Not only would the concerned judge have a fair opportunity to repudiate the allegations levelled against him, even the complainant would have the satisfaction, that the investigation would not be unfair. The "in-house procedure" was devised to ensure exclusion of favouritism, prejudice or bias."
(Emphasis supplied.) This court finds that the said judgment of the Apex Court also reiterates the position of law that any Committee which is (42 of 43) [CW-2313/2018] constituted to look into the allegation of sexual harassment, procedure which they evolve should be in consonance with the rules of natural justice.
The submission of Mr.Lodha that assuming though not admitting that sexual harassment allegations can be found to be proved, the punishment of removal from service is not justified in the facts of the case, this court finds that the perusal of Rule 18A of the CCA Rules, 1958 shows that the report of the Committee is to be given to the disciplinary authority, who has to act on the said enquiry report in accordance with the CCA Rules, 1958. Rule 14 of the CCA Rules, 1958 provides different nature of penalties which can be imposed on a Government servant. The disciplinary authority, as per Rule 14 of the Rules, 1958 can impose any of the penalties for good and sufficient reasons. The disciplinary authority has to consider which penalty is to be imposed against a Government servant, if he is found guilty of committing misconduct.
This court finds that as per Rule 9 of the Rules, 2013, wherever the service Rules exist and the Complaints Committee arrives at a conclusion that allegation against a person has been proved, it shall recommend to the employer or the District Officer, as the case may be, to take any action including a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the person from service or undergoing a counselling session or carrying out community service. The said Rule 9 of the Rules, 2013 makes an exception in respect of the cases where the service Rules exist and in such cases the service Rules will be applicable for imposing the (43 of 43) [CW-2313/2018] penalty. This court has considered Rule 9 of the Rules, 2013 only for the purpose that termination of service is not the only answer but there are several other action which can be taken if the allegation of sexual harassment is made out on the basis of the report of the Committee.
The judgments cited by the learned counsel for the petitioner are in respect of the quantum of punishment, this court has not gone into the question of quantum of punishment and has found the impugned orders being passed in violation of principles of natural justice and as such the court is not considering the case laws which have been cited by the learned counsel.
Accordingly, this court finds that the impugned enquiry report dated 27.11.2017 and the punishment order dated 12.03.2018 are illegal and the same are not sustainable in law and the writ petition deserves to be allowed.
Consequently, the instant writ petition is allowed and the enquiry report dated 27.11.2017 and the punishment order dated 12.03.2018 are quashed and set aside.
(ASHOK KUMAR GAUR),J Solanki DS, PS