Central Administrative Tribunal - Delhi
Narender Kaushik vs Govt. Of Nct Delhi on 24 March, 2015
Central Administrative Tribunal Principal Bench New Delhi O.A.No.3639/2013 Order Reserved on: 05.02.2015 Order pronounced on 24.03.2015 Honble Shri A. K. Bhardwaj, Member (J) Honble Shri V. N. Gaur, Member (A) Narender Kaushik (TGT English) S. Co-Ed SSS No.3 Shakti Nagar New Delhi 7. Applicant (By Advocate: Shri K. P. Gupta) Versus 1. Govt. of NCT Delhi Through, Chief Secretary Delhi Secretariat, Player Building ITO, New Delhi. 2. Director Directorate of Education Govt. of NCT Delhi Old Secretariat New Delhi 110 054. 3. Deputy Director Education (N) Directorate of Education Lucknow Road Timarpur Delhi 110 007. 4. Principal S. Co-Ed SSS No.3 Shakti Nagar New Delhi 7. Respondents (By Advocate: Shri Vijay Pandita) O R D E R Mr. V. N. Gaur, Member (A):
The present OA has been filed by the applicant against an order passed by Respondent No.2 dated 10.04.2013 imposing upon him the penalty of reduction to four lower stages in time scale of pay for a period of three years with further directions that he will not earn any increment of pay during the period and on expiry of the period, the reduction would have the effect of postponing the future increments of his pay, and the order dated 30.07.2013, passed by Respondent No.1 rejecting the statutory appeal dated 25.04.2013, filed by the applicant, against the order dated 10.04.2013.
2. There was an allegation against the applicant that while functioning as TGT (English) at SV No.4, Roop Nagar, Delhi caught of the hand of Ms. Suchi Pandey, PTA teacher, who was sitting alone in the staff room, and tried to drag her with an invitation to dance with him. It was also alleged that the applicant vociferously insulted and violently challenged Mrs. Shailja Dubey, PGT (Eco), who tried to prevent sexual harassment of young girl (Ms. Suchi Pandey) in the work place.
3. An FIR No.233/99 under Sections 354/509 IPC was lodged for his misconduct of sexual harassment leading to a criminal case against him in the Court of Metropolitan Magistrate, Delhi. During the pendency of that case, the complainant, Ms. Shailja Dubey and the applicant in this case moved an application under Section 320 Cr.PC for permission for compounding the case. The Metropolitan Magistrate, compounded the charge by passing the following Order on 15.05.2013:
15.5.2003.
Present: Ld. App for the State.
Accused Narender Kumar Kaushik on bail, with counsel.
Complainant Smt. Shailaja Dubey in person with counsel.
Case file taken up today on an application u/s 320 Cr. PC seeking permission to compound the offence.
Heard. Complainant states that with the intervention of her colleagues and with her free will she has settled her disputes with accused Narender Kr. Kaushik amicably. Accordingly, her statement has recorded and in view of the same, present case stands compounded as compromised. Accused thus stands acquitted of charge u/s 354/509 IPC. File be consigned to Record Room.
Sd/-
MM, Delhi 15.5.2003.
4. However, following a parallel complaint made by Ms. Shailja Dubey to the State Complaints Committee for Prevention of Sexual Harassment at Work Place, Delhi Commission for Women, New Delhi, the Committee, inter alia, recommended on 23.09.1999 to initiate a disciplinary action against the applicant. The Disciplinary Authority, i.e., Respondent No.2 accorded approval for initiation of disciplinary proceedings under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 [hereinafter called as `CCS (CCA) Rules] vide Order dated 27.03.2000. However, the matter did not move further in the disciplinary proceeding as, according to the respondents, the original file was not returned by the Vigilance Branch (Head Quarters), despite several reminders. On the basis of a shadow file, the Department initiated further action against the applicant, by issuing a show cause notice dated 23.01.2010. A chargesheet was also issued on 25.03.2010. The applicant filed OA No.1338/2010 seeking a direction to the respondents to quash and set aside the memorandum of charges dated 25.03.2010 on the ground that it had been issued after a lapse of 11 years, following the alleged incident. This Tribunal, on 19.10.2011, dismissed the OA with a direction to the respondents to ensure that the disciplinary proceedings would be completed in time bound manner but in any case within a period of six months. When the disciplinary inquiry was not completed within the aforesaid period as allowed by the Tribunal, the applicant filed Contempt Petition No.584/2012 in OA No.1338/2010, which was disposed of by this Tribunal on 16.01.2013, on the undertaking given by the respondents counsel that the disciplinary proceedings would be completed according to the indicated schedule. In compliance of the orders of this Tribunal, the impugned orders dated 10.04.2013 and 30.07.2013 have been passed by the respondents.
5. The learned counsel for the applicant challenged the impugned orders mainly on the following grounds:
i) There were serious violations of the procedure and the principles of natural justice vitiating the inquiry proceeding and rendering the penalty order and appellate order void.
ii) The applicant was not provided with the copy of Daily Order sheets, the depositions of the witnesses and the evidence collected from the applicant under Rule 14(18) of the CCS (CCA) Rules, 1965 to enable him to make a representation against the Inquiry Report and the penalty order.
iii) The delay in conducting the inquiry affected his defence as he could not recall the alleged events.
iv) The Inquiry Officer had not proved the major part of the allegations but the Disciplinary Authority took the entire allegations as having been proved without giving `disagreement note.
v) The Disciplinary Authority went beyond the charge memo and made sweeping remarks in his order.
vi) The Appellate Authority did not consider the grounds raised in his appeal in the Order dated 30.07.2013 and deal with the contentions raised therein.
vii) The defence of the applicant was seriously prejudiced because of the inability of the Disciplinary Authority to ensure the presence of Ms. Suchi Pandey in the inquiry, despite the request made by the applicant.
6. The learned counsel relied on the following Judgments:
A) Hardwari Lal v. State of U.P. and Others, ATJ 2000(1) SC 244.
B) Ministry of Finance and Another v. S. B. Ramesh, (1998) 3 SCC 227=1998(2) SLJ 67.
C) J.N.Shukla v. Union of India, OA No.74/1989 of Allahabad Bench of the CAT.
D) Kailash Kumar v. Union of India, OA No.2443/2005 of Principal Bench of the CAT.
E) Teni Ram v. The State of Jharkhand, WP(S) No.3413/2005 of High Court of Jharkhand, Ranchi.
F) Yoginath D. Bagde v. State of Maharashtra, JT 1999(6) SC 62.
G) Narender Mohan Arya v. United India Insurance Company, 2006(3) SLJ 211.
7. The learned counsel for the respondents, on the other hand, stated that the OA is not maintainable in view of the Honble Apex Court Judgment in the case of Union of India and Others v. Upendra Singh, (1994) 3 SCC 357 wherein it was held that judicial review was not directed against the decision but was confined to the decision-making process. Further, it was held that judicial review could not extend to the examination of the correctness or reasonableness of a decision as a matter of fact. In the instant case, the respondents had conducted the entire proceedings in accordance with the CCS (CCA) Rules, and given full opportunity of defence to the applicant satisfying the requirements of the principles of natural justice. All the contentions raised by the applicant in his representation against the Inquiry Report and in the appeal filed against the order passed by the Disciplinary Authority were dealt with by the respondents in the impugned orders. Therefore, it was not a fit case for this Tribunal to intervene. The learned counsel for the respondents further submitted that keeping in view the necessity to deal with the incident of sexual harassment at work place in a firm manner, it was necessary not to show any leniency in such cases.
8. We have considered the submissions made by the learned counsels from both sides and perused the pleadings on record.
9. At the very outset, we find that the applicant has raised several grounds in this OA which raise questions about the procedure followed by the respondents in the disciplinary proceedings and the Appellate Authority not addressing the issues mentioned in the appeal filed by the applicant. We have to examine these grounds as these would come within the scope of judicial review as defined in Upendra Singh (supra) relied upon by the respondents. However, the counter filed by the respondents is vague while dealing with the grounds mentioned by the applicant in the OA. All the grounds from paras 5.A to 5.J of the OA have been brushed aside with the following statement in the counter:
5.A to 5.J. In reply to paras 5.A to 5.J it is submitted that the applicant has not applied his mind while raising these objections, which are totally irrelevant at this stage as the inquiry has been duly completed by the Competent Authority and the same has also been upheld by the Disciplinary Authority, which has been discussed in length in both the orders of Disciplinary Authority and Appellate Authority and the same may be referred to and relied upon. The applicant has been rightly punished for his misconduct.
It is further submitted that while taking into consideration the Preliminary Objections and Para-Wise reply none of the ground support the prayer of the applicant.
10. The Appellate Authority, though little more elaborated in his order than the counter filed by the respondents, has also adopted a short cut in dealing with the contentions raised in the appeal. In his appeal the applicant has raised issued such as
a) non-compliance of procedure in the disciplinary inquiry;
b) non-examination of the witness, who is the author of the complaint, and thereby denying the opportunity of cross-examination;
c) acquittal of the applicant in the criminal case following the compounding of charges;
d) the charges proved against the applicant not amounting to sexual harassment;
e) the allegations pertaining to Mrs. Shailja Dubey not being one of sexual harassment but alleging only talking loud and alleged misbehaviour;
f) the disciplinary authority considering the unproved charges also while passing the penalty order without giving a disagreement note;
g) the Inquiry Officer concluding his findings on the basis of the State Complaints Committees report where appellant was denied his defence and
h) The applicant was not provided a copy of the Daily Order sheets, Statements of the appellant recorded under Rule 14(18) of the CCS (CCA) Rules, 1965.
11. The Appellate Authority, in its order dated 30.07.2013 has reproduced 5 submissions of the applicant and dealt with them in the following manner:
After having gone through record of the case I feel that the conclusions of the Disciplinary Authority are warranted by the facts of the Inquiry Report and the gravity of the charges leveled against the appellant. The points raised by the appellant against the inquiry report and subsequent order of the Disciplinary Authority is more of a technical nature, on the other hand, his argument itself when he says that calling Smt. Suchi Pandey in reference to her dance as a dancer will not come within the preview of sexual harassment, leads credence to the allegation mentioned in the charge sheet. Further, since the acquittal in the Honble court in sexual harassment case of a working women at the work place was the result of a compromise, this does not afford any relief to him as the evidence of the witnesses substantiates the charge. Now, therefore, the undersigned is of the opinion that the contention raised by the appellant in his appeal, does not have much merit and therefore the order of the Disciplinary Authority does not deserve interference and hence the appeal is rejected.
12. It is observed that the Appellate Authority dealt with only two of the contentions raised in the appeal and the rest of them were sought to be disposed of under the cover of the statement that the points raised by the appellant against the Inquiry Report and the subsequent order of the Disciplinary Authority is more of a technical nature.
13. The Rule 27 of the CCS (CCA) Rules, 1965 provides the manner in which the appeal will be considered by the Appellate Authority. The relevant portion of that Rule is reproduced below:
27. Consideration of appeal (1) xx xx xx x x x x x x x x x x x (2) In the case of an appeal against an order imposing any of the penalties specified in Rule 11 or enhancing any penalty imposed under the said rules, the Appellate Authority shall consider-
(a) whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;
(b) whether the findings of the Disciplinary Authority are warranted by the evidence on the record; and
(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe;
and pass orders-
(i) confirming, enhancing, reducing, or setting aside the penalty; or
(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the cases:
14. We find that the Appellate Authority has not gone into the contentions raised in the appeal filed by the applicant, which related to, inter alia, compliance of the procedure laid down in the CCS (CCA) Rules, 1965, and lack of evidence in support of the charges that had been considered proved by the Disciplinary Authority. The Appellate Authority did not even attempt to deal with these substantial questions. We are, therefore, of the view that at this stage, without commenting on the grounds raised by the applicant in this OA, it will be appropriate to direct the Appellate Authority to discharge its statutory responsibility under Rule 27 of the CCS (CCA) Rules, by passing an order that would deal with all the contentions raised by the applicant in his appeal dated 25.04.2013.
15. In this view of the matter, we quash the order dated 30.07.2013, passed by the Appellate Authority, and direct the Appellate Authority to pass a speaking and reasoned order specifically dealing with the grounds mentioned by the applicant in his appeal dated 25.04.2013 and communicate the same to the applicant within a period of six weeks from the date of receipt of a copy of this order. The OA is accordingly disposed of. No order as to costs.
(V. N. Gaur) (A. K. Bhardwaj) Member (A) Member (J) /nsnr/