Central Administrative Tribunal - Mumbai
Ranjeet Bainipal vs Bhabha Atomic Research Centre on 6 November, 2024
1 OA No.715/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI.
ORIGINAL APPLICATION No.715/2021
Date of Decision: 06th September, 2024.
CORAM: Justice M.G. Sewlikar, Member (J)
Shri Santosh Mehra, Member (A)
Shri. Ranjeet Bainipal,
S/o Shri. Harjeet Singh Bainipal
Age 38 years, working as Assistant
Security Officer (A) at EHPPL, Kalyan,
Unit of Bhabha Atomic Research Centre,
residing at : Rajnigandha D 24,
Anushkatinagar, Mumbai, Pin- 400094
Mob No.9969276539
Email: [email protected] ... Applicant
(By Advocate Shri Vishal Shirke)
VERSUS
1. Union of India
Bhabha Atomic Research Center,
Trombay, Mumbai - 400 085.
2. The Head P&CD,
Bhabha Atomic Research Center,
Personal Division,
Vigilance-I Section, Central Complex,
Trombay, Mumbai - 400 085. ... Respondents
(By Advocate Mrs. N.V. Masurkar)
2 OA No.715/2021
ORDER (Oral)
Per: Justice M.G. Sewlikar, Member (J)
The Applicant is challenging the order dated 23 rd October, 2020 passed by the Disciplinary Authority and order dated 30th September, 2021 passed by the Appellate Authority.
2. Facts in nutshell are that;
2.1 The victim and the applicant are working in the same Department i.e Bhabha Atomic Research Center (BARC). On 02nd July 2018, the applicant received a telephonic call from the victim (her name is withheld to protect her identity). The victim requested the applicant to join her for a trek and cycling trip to Leh Ladakh. At around 6.30 PM both of them sat in the car of the applicant. The victim started driving the car. During conversation, the applicant touched her inappropriately. That annoyed the applicant and on 04 th July, 2018 the victim lodged the compliant with Women Cell of BARC alleging that the applicant molested her in his car when they were discussing about a trip. She stated that she slapped the applicant, left the car and pelted stones which hit the applicant's car. Accordingly, applicant was summoned by the 3 OA No.715/2021 Internal Complaints Committee (ICC). The applicant on 31 st July, 2018 accepted that he inappropriately touched the victim. On 31st July, 2018 itself the ICC recorded the settlement between the applicant and the victim. Thereafter, ICC forwarded its recommendation to the Disciplinary Authority on 10th/23rd August, 2018.
2.2 On the basis of the recommendations of the ICC on 10th/23rd August, 2018 the Disciplinary Authority issued charge sheet to the applicant. The ICC held the inquiry and submitted report to the Disciplinary Authority. The Disciplinary Authority held the applicant guilty and imposed penalty of reduction by 02(two) stages i.e. from ₹47,600/- (in Level 6, Cell-11) to ₹44,900/- (in Level 6, Cell 09 of the Pay Matrix) for a period of two years w.e.f. 01.11.2020. It was further ordered that during the period of such reduction, Shri Ranjeet Bainipal will not earn increments of pay and on the expiry of such reduction period, the effected reduction will have the consequence of postponing his further increments of pay.
4 OA No.715/20212.3 Against this order, the Applicant preferred appeal before the Appellate Authority. Since the Appellate Authority did not decide the appeal within a reasonable time, the applicant preferred OA No.550/2021 in which the Appellate Authority was directed to decide the appeal within a specified period. Accordingly, the Appellate Authority, decided the appeal. The Appellate Authority dismissed the appeal by order dated 30th September, 2021. These two orders are being challenged in this OA.
2.4 The applicant contends that the settlement had arrived at in terms of Section 10 of the Sexual Harassment of Women At Work Place (Preventive, Prohibition & Redressal) Act, 2013 (PoSH) Act. He contends that once the conciliation has arrived at, the ICC cannot make any further inquiry. The ICC has treated this settlement as confession and has forwarded the same to the Disciplinary Authority with recommendation to take action against the applicant.
3. Respondents filed reply denying all the contentions. They admit that the settlement had arrived at 5 OA No.715/2021 between the applicant and the victim before the ICC. They contend that the Disciplinary Authority initiated action as per the recommendation of the ICC. The applicant has admitted the charge levelled against him in writing on 31 st July, 2018. Therefore, initiation of inquiry against the applicant was in accordance with law and no fault can be found in the action taken by the Disciplinary Authority.
4. We have heard the learned counsel for the applicant and the learned counsel for the respondents.
5. Learned counsel for the applicant submits that once the settlement had been arrived at, the ICC has to only forward the settlement to the Disciplinary Authority with recommendation. He submits that in terms of Section 10(3) no further inquiry is contemplated by the ICC. The Disciplinary Authority also is not expected to take any action on the recommendation of the ICC but has to close the complaint in terms of settlement between the applicant and the victim. He further submits that the ICC has followed the provisions of Section 10 in breach. He, therefore, submits that the action of 6 OA No.715/2021 the Disciplinary Authority is void as it is in total violation of the provisions of (PoSH) Act.
6. Learned counsel for the respondents submits that the Disciplinary Authority has acted in accordance with the recommendations of the ICC. Section 10 sub-section (4) only says that the ICC shall not make any inquiry when there is settlement. It does not say that the Disciplinary Authority should close the complaint. Therefore, the Disciplinary Authority was right in initiating action against the applicant. She further submits that the applicant has admitted the charge against him by giving it in writing on 31st July, 2018 and the ICC and the Disciplinary Authority acted on this apology and, therefore, the applicant was rightly convicted and appropriately punished.
7. We have given serious consideration to the submissions made by the counsels for the rival parties.
8. In terms of Section 9 of (PoSH) Act a complaint has to be filed by an aggrieved Woman if sexual harassment at Work Place has taken place. Section 10 reads thus: 7 OA No.715/2021
"....10. Conciliation.--
(1)The Internal Committee or, as the case may be, the Local Committee, may, before initiating an inquiry under section 11 and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation:
Provided that no monetary settlement shall be made as a basis of conciliation.
(2)Where a settlement has been arrived at under sub-
section (1), the Internal Committee or the Local Committee, as the case may be, shall record the settlement so arrived and forward the same to the employer or the District Officer to take action as specified in the recommendation.
(3)The Internal Committee or the Local Committee, as the case may be, shall provide the copies of the settlement as recorded under sub-section (2) to the aggrieved woman and the respondent.
(4)Where a settlement is arrived at under sub-section (1), no further inquiry shall be conducted by the Internal Committee or the Local Committee, as the case may be".
9. From bare reading of Section 10, it can be gathered that before initiating inquiry the local committee at the request of aggrieved woman take steps to settle the matter between the victim and the applicant through conciliation. Where the conciliation is arrived at under Section (1), in terms of subsection (2), the ICC shall record the settlement and forward the same to the employer to take action as prescribed in the recommendation. Sub-section 3 of Section 10 states that 8 OA No.715/2021 the ICC shall provide copies of settlement as recorded under sub-section (2) to the aggrieved woman and the applicant. Where a settlement is arrived at under sub-section (1) but no further inquiry shall be conducted by the ICC. Section 13 deals with inquiry report. It reads thus:
"...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 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 9 OA No.715/2021 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:
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."
Thus, this clause provides for inquiry report. It provides that on the completion of an enquiry under the legislation, the Internal Committee or the Local Committee shall provide a report of its findings to the employer or to the District Officer, as the case may be, and such report shall be made available to the concerned parties.
9.1 It further provides that in case the Internal Committee or the Local Committee arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer or to the District Officer, as the case may be, that no action is required to be taken in the matter. 9.2 It also provides that in case it arrives at the conclusion 10 OA No.715/2021 that the allegation against the respondent has been proved, then, it shall recommend to the employer or the District Officer-(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 by rules; and (ii) notwithstanding any thing contained in the service rules applicable to the respondent, to deduct from the salary or wages of the respondent such sum consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of clause 15 and 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 compensation to the aggrieved woman. 9.3 It also provides that the employer and the District Officer shall act upon the recommendation within sixty days of its receipt by him.
10. In terms of Section 10, it is clear that the settlement once it is arrived at has to be forwarded to the employer by the ICC. In the case at hand, the ICC did not forward the 11 OA No.715/2021 settlement to the Disciplinary Authority but it has forwarded the apology to the Disciplinary Authority. The observations of the ICC are quoted hereunder:-
".....Interview with Smt. Rajalakshmi
Deshpande:
Smt Deshpande stated that she is acquainted with Shri Ranjeet Bainipal ASO, PD/Security. On the day of the incident i.e. 02.07.2018 she left from BARC and had met Shri Bainipal at PTAA complex. They had planned to meet to discuss about a cycling trip to Leh Ladakh that she was going to undertake with her friends, for which he also expressed a desire to join. Since it looked like it was going to rain, both of them got in to his car and she sat on the driver's seat. He sat in the passenger seat. All of a sudden he tried to kiss her and touched her breasts. She was shocked by his behavior and pushed him away and got out of the car. In anger she picked up a stone and threw at the windshield. Since she was very upset she could not throw it with force. The stone did not damage the car, the next day she went to meet Smt Tanuja Jadhav CSO, but since the CSO had been transferred, the complainant met Shri Ghag and narrated the incident to him and gave a written complaint. She also stated that Shri Bainipal had tried to call her at work but she had told her colleagues that if any male person calls to talk to her she should not be given the call.
Interview with Shri. Ranjeet Bainipal:
Shri Bainipal was called on 31.07.2018 to appear before the Internal Complaints Committee. He was shown the complaint and asked about the Incident. 12 OA No.715/2021 He stated that he and the complainant were good friends. He had shared with Smt, Deshpande, his personal problems with his wife. He also stated that if his behavior, has in anyway hurt Smt Deshpande's feelings he is willing to apologise. He repeatedly apologized. The committee then called the Complainant to join after confirming with the complainant her willingness for a joint discussion, with Shri Bainipal. He again repeated his apology verbally in front of her. He gave it in writing and the joint statements were taken from both of them. He accepted the charge of sexual harassment leveled against him vide his letter dt. 31.07.2018.
The observations made by the Complaints
committee:
The incident as narrated by Smt Deshpande was corroborated by the charged official. He accepted that he had committed sexual harassment. He stated that if she has been hurt by his behavior he will apologise as he does not want this matter to proceed further. He kept on talking about the interpersonal problems faced by him and his wife because of which he has filed for divorce. He was told that he should focus and talk about the allegations made by the complainant. He expressed willingness to give a written apology which was acceptable to the complainant and accordingly he has accepted the charge leveled against him vide his letter dtd. 31.07.2018.
Shri Bainipal admitted to committing sexual harassment and also offered apology, therefore the Committee recommends that appropriate action may be taken".
11. It is pertinent to note that the ICC had conducted joint session with the complainant and the applicant. The 13 OA No.715/2021 applicant tendered apology and it was accepted by the complainant. Thus, once the settlement was arrived at there was no scope for the ICC or the Disciplinary Authority to proceed with the inquiry. The ICC in its report did not mention the proceedings of joint session between the complainant and the applicant. We deem it appropriate to reproduce these proceedings Annexure A4 hereunder:-
"JOINT SESSION WITH SMT. V. RAJALAKSHMI A. DESHPANDE, SA/E, FTD, BARC (COMPLAINANT) AND SHRI RANJEET BAINIPAL, ASSTT. SECURITY OFFICER/A, SECURITY SECTION, BARC (CHARGED OFFICIAL) On 31.07.2018, both Smt. V. Rajalakshmi and Shri Ranjeet Bainipal were called to appear before the Complaints Committee, Both were present. The committee showed the complaint lodged by Smt. Rajalakshmi to Shri Bainipal and asked him whether he accepts the charges leveled against him. When Shri Bainipal was asked about the incident, he repeatedly apologized. Shri Bainipal informed the committee that he is sorry for his misbehavior for the incident and accordingly he has submitted a letter accepting the charges leveled against him and assured that such a misbehavior would not happen again.
The apology tendered by Shri Bainipal before the committee was accepted by Smt. Rajalakshmi. Smt. Rajalakshmi (Complainant) informed the 14 OA No.715/2021 Committee that she does not want to pursue the matter further."
12. From these observations, it is clear that the ICC has given a finding that the applicant has accepted the charge levelled against him. It is pertinent to note that the purpose of conciliation of Section 10 is to explore the possibility of settlement between the complainant and the applicant. The complainant in the joint statement has stated that she does not want to pursue the matter any further. The ICC ought to have provided copy of settlement to the applicant and the victim. They did not do so. Thus, the ICC has committed breach of Section 10(3) of (PoSH) Act. Once settlement was arrived at and the complainant did not want to pursue with the matter, the ICC should have forwarded the settlement to the Disciplinary Authority. The ICC did not forward the settlement to the ICC but forwarded the report to the Disciplinary Authority. It was not appropriate on the part of the Disciplinary Authority to again direct the initiation of inquiry by serving Memorandum on the applicant. The purpose of Section 10 of the PoSH Act is to explore the 15 OA No.715/2021 possibility of settlement and conciliation between the complainant and the applicant. The very purpose gets defeated, if the ICC, forwards the report for disciplinary action.
13. In addition to this, Disciplinary Authority cannot frame charge and serve charge sheet on the charged officer. It has been held in the case of Institute of Hotel Management, Catering Technology and Applied Nutrition and Ors. Vs. Suddhasil Dey & Anr., 2020 SCC Online Cal 3320 (Calcutta High Court) as under:
"...45. Upon the constitution of a committee within the meaning of section 4 of the 2013 Act, a victim of sexual harassment may approach the same direct with a complaint. If the complaint is, prima facie, found to have substance and worthy of being inquired into, the committee shall call upon the employee-respondent and explain to him what the allegations against him are. Copy of the complaint must be made available to him in course of the interaction. A written response to the complaint would always be desirable and, thus, the employee-respondent ought to be invited to submit his response in writing. If there is a denial of the allegations, the committee must inquire into the complaint. In case the employee-respondent understands what the allegations levelled against him are and does not insist, the requirement of issuing a formal charge- sheet and handing over the same together with the lists of documents and witnesses could be dispensed with. However, if the employee- respondent insists, sub-rules (3) and (4) of rule 14 of the CCS (CCA) Rules need to be complied with. Should circumstances be such that conciliation can be brought about, section 10 of the 2013 16 OA No.715/2021 Act permits the parties to proceed in that direction.
Having regard to the proviso to sub- rule (2) of rule 14 of the CCS (CCA) Rules, the committee has to function as the inquiring authority and question of the disciplinary authority itself inquiring into the complaint, as is referred to in sub-rules (5) and (6) of rule 14, would not arise. Although the proviso says that inquiry could be held by the committee if a separate procedure has not been prescribed for such purpose, such provision has to yield to the provisions of sub- section (1) of section 11 of the 2013 Act mandating the committee to make inquiry in terms of the service rules applicable to the employee- respondent, should the same exist. The inquiry must thereafter, as of necessity, proceed in consonance with the principles of natural justice and also in terms of the other sub-rules of rule 14, to the extent practicable (emphasis supplied). It may not be necessary in all cases for an employer to appoint a Presenting Officer."
14. From these observations, it is clear that ICC has to frame the charge and serve the Charge Memorandum on the applicant. In the case at hand, Disciplinary Authority has served the charge-sheet Therefore, the inquiry is bad in law and cannot be sustained. ICC committed another error. It has to make recommendation to the employer in terms of Section 13(2) of PoSH Act. It has not made any recommendation in terms of Section 13(2) of the PoSH Act.
15. In terms of second Proviso to Section 11, where both the parties are employees, the parties 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 17 OA No.715/2021 representation against the findings before the Committee.
There is nothing on record to show that the Committee made available the findings to the complainant and the applicant who are the Central Government employees. Therefore, inquiry in this respect also cannot be said to be legal.
16. In this view of the matter, we do no find that the action of the Disciplinary Authority was in consonance with the provisions of the PoSH. Therefore, the order passed by the Disciplinary Authority needs to be quashed and set aside. Accordingly, we pass the following order:
a) Orders dated 23rd October, 2020 & 30th September, 2021 stand quashed and set aside.
b) Applicant shall be entitled to all the consequential benefits.
17. The OA is allowed in the above terms.
Pending MAs, if any, stand closed. No order as to costs.
(Santosh Mehra) (Justice M.G. Sewlikar) Member (A) Member (J) dm. Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone=
270b8c883fb6c7df159699dde8a3a29e49a 591f4547843867fc06f0095732d99, Ganesh PostalCode=400083, S=Maharashtra, SERIALNUMBER= 60e5a202fd00f69f0731b41e2e3bdfa180f4 71e3c55c542947568cc8f7d6a4f4, CN= Munarshi Deepti Ganesh Munarshi Reason: I am the author of this document Location:
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