Equivalent Citation:135(2006)DLT346, (2006)ILR 2Delhi1313
IN THE HIGH COURT OF DELHI
Writ Petition (Civil) No. 7849/2006
Decided On: 17.11.2006
Appellants: Sandeep Khurana
Respondent: Delhi Transco Ltd. and Ors.
Manju Goel, J.
For Appellant/Petitioner/plaintiff:S.K. Taneja, Sr. Adv.,P.P. Ahuja andR. Tiwari, Advs
For Respondents/Defendant:S.K. Dubey, Adv. for R-1 andAparna Bhat andP. Ramesh Kumar, Advs. for R-2
Manju Goel, J.
- Two questions which this Court is required to address in this writ petition are, (1) what is the procedure to be followed for taking disciplinary action on a complaint of sexual harassment; and (2) what is the role of State Complaint Committee.
- The facts of this case can be stated briefly as under:
- The petitioner and respondent No. 2, Ms.Vinita Tiwari, were both employees of respondent No. 1-Delhi Tansco Limited (`DTL’ in short). The two developed friendship and they were on visiting terms and exchanged greeting cards. On 1.11.2004 an incident took place in the office of respondent No. 2 and respondent No. 2 made a short report, relevant part of which when translated into English reads as under:
- Today on 1-11-04 at 4.50 PM Sh Sandeep Khurana misbehaved and scuffled with me causing bleeding injuries. Sir, this man has been making filthy telephone calls to me at my office and home thereby causing physical and psychological harassment to me.
- The petitioner on his part made a brief report in respect of the incident on the same day contending that there was a quarrel between the two and during the quarrel respondent No. 2 caught him by his collar and when she was about to slap him on his face, he caught hold of her hand. He also named certain witnesses. He added that in the scuffle his gold buttons were broken and that respondent No. 2 also threatened of assault in the future.
- Respondent No. 2 made a complaint in detail to the General Manager (Admn.), Shakti Sadan, New Delhi on 5.11.2004. This complaint described the incident of 1.11.2004 as “physical assault and act of harassment by Shri Sandeep Khurana, AG-III”. She demanded action against the petitioner for sexual harassment on the plea that the action of Sandeep Khurana was not only physical assault but also an act of sexual harassment. She drew attention of the General Manager to Rule 3C of CCS (Conduct) Rules, 1964 which prohibited sexual harassment and physical assault on working women. Yet another complaint was made by her on 19.11.2004 to the General Manager (Admn.), Delhi Transco Ltd. in respect of the same incident of 1.11.2004 and asking for action against the petitioner.
- Following these complaints there was an enquiry by Shri M.M.K. Gupta, Deputy Manager who gave a report on 10.11.2004. Although the copy of the report is not on the record it is the admitted case that Shri M.M.K.Gupta submitted a report on 11.11.2004 indicating that it was not a case of sexual harassment. Respondent No. 1 issued an order on 18.11.2004 Constituting a Committee of four persons, namely, Ms. Kavita Sharma (Chairperson), Smt.Rajrani Mehta & Sh. M.K. Chowdhary (Members) and Sh. P. Narayanan as Member Secretary. The office order reads as under:
- OFFICE ORDER
- It has been decided to constitute a departmental committee to look into an alleged case of harassment made by Smt. Vinita Tiwari, AG-III, E.No.32650 against Sh. Sandeep Khurana, AG-III. The complaint committee shall consist of the following members:
- Smt. Kavita Sharma, Manager (SS&NP) – Chairman 2. Smt. Rajrani Mehta, PS to GM (Const.) – Member 3. Sh. M.K. Chowdhury, AM (Vig.) – Member 4. Sh. P. Narayanan, AM (F) EB – Member Secy.
The Committee shall look into the charges from the vigilance angle also and submit its report within 7 days.
This issues with the approval of the Competent Authority.
- Director (HR)
- GM (A)
- All members of the Committee.
- Conspicuously the copy of this order was not sent to the petitioner. The Committee issued a notice to the petitioner on 24.11.2004. No copy of any complaint or report or any memorandum or any statement of articles of charges was enclosed with this notice. It was simply one sentence notice asking the petitioner to appear before the Departmental Inquiry Committee on the stipulated date and time. No written reply to the complaint of respondent No. 2 was taken from the petitioner. However, during the inquiry he made a statement before the Committee which was taken down. The Committee in its inquiry examined witnesses and took the statements of the petitioner and of respondent No. 2. However, there was no cross-examination of these witnesses. The Committee returned a finding in December, 2004 holding that the incident of 1.11.2004 was not a case of sexual harassment and was a case of scuffle between respondent No. 2 and the petitioner in regard to their personal matters. It appears from the report that the statements were not taken in the sequence in which the statements are taken in a departmental enquiry, i.e., witnesses of the department first, followed by the statement of the charged officer in his defense, followed by defense witnesses.
- Following the report notice was given to the petitioner on 25.1.2005 calling upon him for to show cause why suitable disciplinary action should not be initiated against him for (i) breaching the office discipline, decorum and decency by getting involved in a physical scuffle with a co-worker; (ii) failing to maintain a formal, officious and cordial relationship with a co-worker i.e. Smt. Vinita Tiwari. Respondent No. 2 was also served with a similar show cause notice for making false accusation of sexual harassment against Mr. Sandeep Khurana and for breaching office discipline, decorum and decency and for failing to maintain formal, officious and cordial relationship with a co-worker. However, respondent No. 2 made a representation of 19.6.2005 insisting that she has been subjected to sexual harassment by the petitioner and was not satisfied by the inquiry report submitted by the Committee. It may be mentioned here that the Committee had undergone a change as one Member Shri M.K. Chowdhari, who proceeded on leave, was replaced by Shri Sandeep Babuta and Ms. Saba Arshad was included as an independent observer. Accordingly, respondent No. 1 sent the report to the Secretary (Services), NCT of Delhi for consideration and resolution. The Secretary, NCT of Delhi forwarded the same to the Chairperson, Delhi Commission for Women for “taking further necessary action in the matter”. The matter was then taken up by the State Complaints Committee and on 28.9.2005 the Committee issued the following notice to the petitioner:
DELHI COMMISSION FOR WOMEN
(Govt. of NCT of Delhi)
C-BLOCK, IIND FLOOR, VIKAS BHAWAN, NEW DELHI
No. F.27/2005/SH/4067 Date: 28th September 2005
Whereas Mrs. Vinita Tiwari, AG-III has made a complaint against Sh. Sandeep Khurana, AG-III in the matter of sexual harassment to her. The State Complaints Committee on Prevention of Sexual Harassment of Working Women is convening a meeting on Thursday, the 10th November 2005 at 2.30 P.M. in the chamber of Chairperson (State Complaints Committee), Delhi Commission for Women.
You are directed to appear before the Committee on abovementioned date and venue to explain your viewpoint.
Sh. Sandeep Khurana
O/o Manager (TKP)
Delhi Transco Limited
Shakti Deep Building
Near Videocon Tower
- The proceedings before the State Complaint committee are discerned from the report of the State Complaint Committee. The report starts by mentioning the issues arising for consideration before the State Complaint Committee:
(i) Is the action of Shri Sandeep Khurana AG-III, working in Delhi Transco Ltd. against Smt. Vinita Tiwari against moral sanctions, decency and amounting to sexual harassment?
(ii) Does his physical contact of Smt. Tiwari (a female employee) and holding both her hands forcefully by (Sh. Khurana, her male colleague) amount to sexual harassment.
(iii) Is the allegation that the Senior Officers of the department and the Complaints Committee in DTL not maintain independence and impartiality during inquiry into the complaint of sexual harassment by Smt. Vinita Tiwari?
- As per the narration of the State Complaint Committee, the incident reported on 1.11.2004 was as follows:
The petitioner followed the respondent No. 2 to her seat and assaulted her and then held both of her hands and said, “why you are not talking to me” and when she tried to free herself from his clutches she failed. On hearing her cries Shri R.P. Singh, Smt. Asha Rani and Smt. Savitri Raba rushed to her room and rescued her.
- One cannot fail to notice that these allegations, however, do not form part of either of the reports of respondent No. 2 dated 1.11.2004 or of 5.11.2004. The report then mentions the petitioner’s report to counter the allegations of the respondent No. 2 and also respondent No. 2’s complaint of 5.11.2004. The report then proceeds to say that a Departmental Complaint Committee was constituted to look into the alleged case of harassment of respondent No. 2 and that the statement of respondent No. 2 was recorded on three occasions and she was interrogated by the Members of the Committee. The report then proceeds to note the observations of the Departmental Complaint Committee. The report then recalls that respondent No. 2 in her reply denied that the allegations of sexual harassment were false and made allegations that the Departmental Complaint Committee had favored the petitioner. It then says that the Committee had three sittings on 10.11.2005, 17.11.2005 and 23.11.2005, that respondent No. 2 and the petitioner were examined by the Committee and that respondent No. 2 made allegations that the procedure of the Departmental Complaint Committee was merely an eye-wash. The petitioner is said to have admitted to have given a blood written card to respondent No. 2. The report further says that the officers of DTL Shri A.K. Kaul, GM (SLDC), Shri Venugopal, Manager (SLDC), Smt. Kavita Sharma, Chairman of the Departmental Complaint Committee, Shri M.M.K.Gupta, Dy. Manager (A-II), Col. Dinkar Adeeb, GM (Admn/Legal), Smt. Shyama Bharti, Dy. GM (Admn), apart from witnesses to the incident, viz., Shri Ravinder Pal Singh & Shri Baljit Singh, were examined on 17.11.05 & 23.11.05. The brief synopsis of the statements made by these witnesses before the Committee has then been narrated in the report. The conclusions of the Committee can now be extracted:
The entire episode indicates that Sh. Sandeep Khurana has committed an act of sexual harassment vis-a-vis Mrs. Tiwari by conduct which is against the moral code and duties forming decent behavior at the work place and does not withstand the test of decency and propriety. Such an action on the part of Sh. Khurana is covered by the terms of sexual harassment and the conclusion arrived at by DTL Complaint Committee is misplaced. The Department is, Therefore, advised to take action as per rules against Sh. Sandeep Khurana for sexual harassment of Mrs. Tiwari and other officers for committing irregularities and not dealing with the case in all seriousness as per law.
- On receiving this report the petitioner was served with a memorandum dated 9.3.2006. Referring to the earlier communication of 25.1.2005 this memorandum said, “In view of the report of State Complaints Committee on prevention of sexual harassment of working women dated 13.01.2006 on the subject, the said communication dated 25.01.2005 is hereby withdrawn without prejudice to any further action that may be taken in the matter.”
- On the same day, the petitioner was served with a memorandum along with a copy of the report of the State Complaint Committee dated 13.1.2006. The relevant part of the memorandum reads as under:
- …As clarified in O&M’s office order No. F.T/31/2004-O&M/129 dated 15.7.2004, the Complaints Committee as envisaged by the Supreme Court in its judgment in Vishaka’s Case SC/0786/1997 : AIR1997SC3011 , will be deemed to be an inquiry authority for the purposes of Central Civil Services (Conduct) Rules, 1964 (hereinafter called CCS Rules) and the report of the Complaints Committee shall be deemed to be an inquiry report under the CCS Rules. Thereafter the disciplinary authority will act on the report in accordance with the rules.
- In view of above, the report of the State Complaints Committee dated 13.01.2006 is being considered as an enquiry report under the CCS (CCA) Rules. A copy of the report dated 13.01.2006 is enclosed. Shri Sandeep Khurana is hereby called upon to send his representation on the report of the Complaints Committee to the Disciplinary Authority within 21 days of receipt of this memorandum failing which it will be presumed that he has nothing further to say in the matter. The disciplinary authority will consider the representation, if any, before taking a final decision in the matter.
- The petitioner filed this writ petition and challenged the second memorandum dated 9.3.2006 described in the previous paragraph. During the pendency of the writ petition, the petitioner was served with the order of punishment dated 12.5.2006. The concluding part of the order of punishment is as under:
…Shri Khurana has not countered the specific observations made by the State Complaints Committee in its report dated 13.01.2006. Since the report of State Complaints committee supersedes the report submitted by the departmental Complaints Committee, the undersigned is of the opinion that the charge of sexual harassment against Shri Khurana stands established and that ends of justice would be met if the penalty of removal from service which shall not be a disqualification for future employment under the Government, is imposed on Shri Khurana.
NOW Therefore, the undersigned orders accordingly.
GENERAL MANAGER (ADMN.)
The petitioner then amended his writ petition to challenge the order of punishment.
- The question that poses itself for consideration is whether the petitioner could be removed from service on the basis of above proceedings. Appearing on behalf of respondent No. 2, Ms. Aparna Bhat, Advocate, impressed upon the court that sexual harassment at work place is a serious matter and that respondent No. 2’s complaint was not taken with the seriousness it deserved. She also contended that respondent No. 2 was further harassed during the inquiry proceedings conducted by the State Complaint Committee and that justice has still not been done to her. There can be no dispute on the proposition that sexual harassment at work place is a serious matter and that all complaints of sexual harassment need to be dealt with all seriousness they deserve.
- However, the question that has arisen is not whether the Departmental Complaint Committee has taken its task seriously. The question that this Court is called upon to answer is whether the petitioner could be removed from service on account of the report of the State Complaint Committee dated 13.1.2006 which was followed by the memorandum dated 9.3.2006.
- The procedure for imposing the major penalty of removal from service is given in Rule 14 of CCS (CCA) Rules. It is not disputed that these Rules apply to respondent No. 1-DTL which is an undertaking of the Government of NCT of Delhi. The procedure laid down by Rule 14 of the CCS (CCA) Rules is well known but is recalled in the succeeding paragraph to compare the procedure adopted by the two Committees with the procedure of Rule 14 ibid.
An inquiry into the truth of any imputation of misconduct can be carried out by the Disciplinary Authority itself or by an Inquiry Officer appointed by it. Whenever an inquiry is contemplated the disciplinary authority has to draw up (i) the substance of imputations of misconduct or misbehavior into definite and distinct articles of charge; and (2) a statement of imputations of misconduct or misbehavior in support of each article of charge. The articles of charge and the statement of imputations of misconduct or misbehavior along with a list of documents and witnesses by which different article of charge was proposed to be sustained is then required to be delivered to the Government servant against whom the inquiry is proposed. A written statement of his defense is required to be filed. On examination of the written statement, if necessary, an Inquiring Authority may be appointed. The Government then appoints a Presenting Officer to present the case against the delinquent Government servant. The Inquiring Authority is provided with the copies of the relevant documents including the charge-sheet and the memorandum. The Government servant is then to appear in person before the Inquiring Authority. The Government servant is allowed to take the assistance of any other Government servant or a retired Government servant. The Inquiring Authority is thereafter to take the plea of the Government servant as to whether he admits the guilt or not. There is a provision of discovery and production of documents. Thereafter oral and documentary evidence has to be produced on behalf of the Disciplinary Authority in which the witnesses are examined by the Presenting Officer and cross-examined by the Government servant and re-examined by the Presenting Officer, if so required. The Government servant is then required to state his defense orally or in writing. Thereafter the Government servant is afforded an opportunity to produce his evidence in defense and to examine himself in his own behalf, if he so prefers. The witnesses of the defense are also liable to be cross-examined. At the end of the inquiry, the Inquiring Authority is required to hear the Presenting Officer and the Government servant. The Inquiring Authority is thereafter required to submit its report to the Disciplinary Authority. In case a finding of guilt is returned, the Government servant is entitled to make his representation against the report . The Disciplinary Authority then imposes the penalty after considering the report and the representation of the Government servant.
- Admittedly this procedure has not been followed. The charges were not framed nor was any memorandum prepared in support of each article of charge. The petitioner was not given list of witnesses to be examined in the inquiry conducted either by the Departmental Complaint Committee or by the State Complaint Committee. Admittedly, since the procedure as provided in Rule 14 has not been followed there was no occasion for the petitioner to seek the assistance of any Government servant. Nor were the witnesses offered for cross-examination of the petitioner and there was no occasion for the petitioner to decline any such offer for cross-examination of witnesses. Thus, the entire procedure given in Rule 14 of CCS (CCA) Rules has been given a complete go by.
- The plea raised by the respondents is that the Complaint Committee is deemed to be the Inquiring Authority for the purpose of inquiring into the allegations of sexual harassment. Rule 14 of the CCS (CCA) Rules includes a proviso to Sub-Rule (2), which is as under:
Provided that where there is a complaint of sexual harassment within the meaning of Rule 3-C of the Central Civil Services (Conduct) Rules, 1964, the Complaints Committee established in each Ministry or Department or Office for inquiring into such complaints, shall be deemed to be the Inquiring Authority appointed by the Disciplinary Authority for the purpose of these rules and the Complaints committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules.
This was brought about by an amendment on 1.7.2004. The amendment was brought into effect under the orders of Supreme court in the case of Medha Kotwal Lele and Ors. v. UOI and Ors. WP (Crl.) Nos. 173-177/1999 decided on 26.4.2004.
- It may be recalled that the Supreme Court in the case of Vishaka and Ors. v. State of Rajasthan and Ors. SC/0786/1997 : AIR1997SC3011 issued certain directions to the employers to ensure prevention of sexual harassment of women. It, inter alia, provided that an appropriate mechanism should be created by the employer organizations for redressal of the complaints made by a victim of sexual harassment and that the complaint mechanism should be adequate to provide a Complaint Committee apart from a special counselor or other support services. The Complaint Committee was ordered to be headed by a woman and required that not less than half of its members should be women. The Complaints Committees were required to make an annual report to the Government department concerned of the complaints and actions taken by them. The Government made amendments in the CCS (Conduct) Rules including therein Rule 3(C) which forbids the Government servants from indulging into sexual harassment.
- The Government of National Capital Territory of Delhi issued order No. 2/37/98/S.1179 dated 19.5.1999 to provide for Complaint Committees. By this order a three-Members State Complaint Committee at the level of Government of NCT of Delhi was created under the aegis of the Delhi Women Commission. Simultaneously all Heads of Department and Autonomous Organizations were directed to constitute Departmental Complaint Committee comprising of three senior female members/staff of the department. The functions of the State Complaint Committee and that of Departmental Complaint Committee were, however, distinct.
- The Departmental Complaint Committee were to discharge the following functions:
- Inquire into the complaints of sexual harassment within the department and report the same to the State Complaints Committee within a specific time frame. For this purpose, sexual harassment includes such unwelcome sexually determined behavior (whether directly or by implication) as:
- Physical contact and advances.
- A demand or request for sexual favors.
- Sexually coloured remarks.
- Showing pornography.
- Any other unwelcome physical verbal or non-verbal conduct of sexual nature.
- Inquire into the complaints of sexual harassment within the department and report the same to the State Complaints Committee within a specific time frame. For this purpose, sexual harassment includes such unwelcome sexually determined behavior (whether directly or by implication) as:
- Recommend the action to be initiated in each case.
- Ensure that the victims or witnesses are not victimised or discriminated against. They shall also examine whether the victim should have the option to seek transfer of the perpetrator or their own transfer.
- The Departmental Committee shall submit a detailed quarterly report of the complaints received and the action taken thereof, to the State Complaints Committee, with its headquarter at I.P.Estate, New Delhi.
- The State Complaint Committee was to perform the following functions:
- Monitor work of Departmental Committees set up for registering and inquiring into the complaints of sexual harassment within the Departments, for time bound disposal.
- Register and inquire into the complaints made directly to the Committee.
- Render advice to appropriate authority on its own motion or otherwise, on the complaints, including the following points:
- Whether any conduct amounts to specific offence under the Indian Penal Code, any other law or the CCS (Conduct) Rules.
- Action to be taken on specific complaints.
- The Committee shall further ensure that:
- The victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
- The guidelines of Govt. of India on the subject matter are followed by various departments and that the complaints received by Departmental Committees are examined as per guidelines of Govt. of India.
- The Committee may, on its own motion or otherwise inquire whether a Departmental Committee while dealing with the complaints has followed guidelines of Govt. of India and direct the departments to take appropriate action on the complaints.
- In a subsequent judgment in the case of Medha Kotwal Lele (Supra) the Supreme Court made the following interim order on 26.4.2004:
Several petitions had been filed before this Court by Women Organisations and on the basis of the note prepared by the Registrar General that in respect of sexual harassment cases the Complaints Committees were not formed in accordance with the guidelines issued by this Court in Vishaka v. State of Rajasthan SC/0786/1997 : AIR1997SC3011 and that these petitions fell under clause (6) of the PIL Guidelines given by this Court i.e. “Atrocities on Women” and in any event the Guidelines set out in Vishaka were not being followed. Thereupon, this Court treated the petitions as writ petitions filed in public interest.
Notice had been issued to several parties including the Governments concerned and on getting appropriate responses from them and now after hearing learned Attorney General for UOI and Learned Counsel, we direct as follows:
Complaints Committee as envisaged by the Supreme Court in its judgment in Vishaka’s Case,v SC/0786/1997 : AIR1997SC3011 , will be deemed to be an inquiry authority for the purposes of Central Civil Services (Conduct) Rules, 1964 (hereinafter called CCS Rules) and the report of the Complaints Committee shall be deemed to be an inquiry report under the CCS Rules. Thereafter the disciplinary authority will act on the report in accordance with the rules.
Similar amendments shall also be carried out in the Industrial Employment (Standing Orders) Rules.
Further directions in relation to educational institutions and other establishments will be made subsequently, as it is not very clear whether all the parties concerned in this regard have been served or not. Let a note be prepared as to which of the parties have been served on this aspect of the matter and what their responses are. For further orders list in July, 2004.
- It may be recalled now that the Complaints Committee as envisaged in the Vishaka’s case (Supra) was a Committee created in the employers organization. Sub-paras 6 & 7 of the guidelines as given in paragraph 16 of the judgment are quoted for a closer look at the Vishaka’s judgment (Supra):
- Complaint Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
- Complaints Committee:
The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counselor or other support service, including the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them.
The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.
- The judgment in the case of Vishaka (Supra) did not contemplate any State Complaint Committee. It contemplated only Departmental Complaint Committee which were to be in place in the employers organizations. Therefore, when in Medha Kotwal Lele’s case (Supra) the Supreme Court said that the Complaints Committee as envisaged by the Supreme Court in its judgment in Vishaka’s case (Supra) would be deemed to be an Inquiry Authority it referred to only those Committees which could be called the Departmental Complaint Committee. As can be seen from the order dated 19.5.1999 it was the Departmental Complaint Committee which was required to inquire into the cases of sexual harassment within the department. These Departmental Complaints Committees were directed to be deemed to be Inquiring Authority under the CCS (CCA) Rules. This order cannot be read to mean that the State Complaints Committee would also become the Inquiring Authority under the CCS (CCA) Rules.
- In the present case the Departmental Complaint Committee has exonerated the petitioner. The State Complaint Committee has found the petitioner guilty of sexual harassment. If the Departmental Complaint Committee is deemed to be the Inquiring Authority then the petitioner cannot be removed from service as the Departmental Complaint Committee does not find him guilty. So far as the State Complaint Committee is concerned, it was not the Inquiry Committee either by virtue of the judgment in the case of Medha Kotwal Lele (Supra) nor by virtue of the amendment in the Rules which has been extracted above.
- More importantly neither the Departmental Complaint Committee nor the State Complaint Committee ever followed the procedure prescribed by Rule 14 of CCS (CCA) Rules. It is submitted on behalf of the respondents that although specific charges were not framed the petitioner was never unaware of the allegations against him inasmuch as the copies of the complaint had been given to him. Further it is submitted that the witnesses were examined in his presence and it was for him to ask for permission to cross-examine the witnesses. It is then contended that the procedure of Rule 14 was followed in spirit and, Therefore, the petitioner can have no grievance to the procedure having been by-passed.
- These submissions of the respondents are not at all acceptable. Respondent No. 1 has totally ignored the Rules. Even when the Departmental Complaint Committee was asked to inquire into the matter it was perhaps not contemplated to be an inquiry under the CCS (CCA) Rules. Nor was it being looked upon as an inquiry contemplated under the Rules by the petitioner or by respondent No. 2. No one thought it necessary to ask the petitioner to submit a written reply to the allegations, or to cross-examine the witnesses of respondent No. 2 or to present his own witness. There was no occasion for the petitioner to seek any assistance of a co-worker during the inquiry because no one looked upon the proceedings as if they were proceedings for imposing the major penalty.
- Be that as it may, it is the State Complaint Committee’s report which has brought about the impugned notice and the impugned order of punishment. The State Complaint Committee was not even categorically appointed to inquire into the allegations of misconduct or to proceed under the CCS (CCA) Rules. The notice issued by the State Complaint Committee said, “You are directed to appear before the Committee on abovementioned date and venue to explain your viewpoint”. As can be seen from the initial part of the report the State Complaint Committee raised certain issues of interpretation rather than of fact and accordingly the petitioner was called upon to give his “view point”. Clearly the petitioner was not called upon to defend himself as if the proceedings of the State Complaint Committee were going to be disciplinary proceedings. Therefore, the report of the State Complaint Committee by no argument can be equated with the report of an Inquiry Authority.
- When the rules are amended to say that the Complaint Committee as envisaged in the Vishaka’s case (Supra) would be deemed to be Inquiry Authority for the purpose of CCS (CCA) Rules it is imperative that the Complaint Committee proceeds according to CCS Rules and in the manner in which an Inquiry Authority conducts its proceedings under the said Rules. The Supreme Court never meant that the Complaint Committees which were to function as Inquiry Authority under the CCS (CCA) Rules could return a finding of guilt against a Government servant without ever adopting the procedure of Rule 14 ibid, i.e., giving him a charge-sheet, a memorandum delineating the allegations on which the charges are framed along with other articles like list of witnesses and the documents relied upon and then proceeding in the manner prescribed under Rule 14 of ibid. The responsibility of the Complaint Committee, by virtue of the judgment in Medha Kotwal Lele (Supra) case, has immensely increased as it is now no more a fact finding Committee. It has been converted into an Inquiring Authority and, Therefore, has to follow the procedure prescribed by Rule 14. The action taken cannot be supported on the plea that although Rules are ignored the principles of natural justice has been followed.
- Article 311(1) & (2) of the Constitution of India prescribes as under:
Article 311. (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
- Rule 14 of the CCS (CCA) Rules gives effect to the protection given to a Government employee by Article 311 of the Constitution. Rule 14 (1) reads as under:
- Procedure for imposing major penalties
- No order imposing any of the penalties specified in Clauses (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided in this Rule and Rule 15, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act.
- Thus, to hold an inquiry is a mandatory provision. It is further mandatory that the inquiry should be held, as far as may be possible, in the manner provided by Rule 14. The entire procedure laid down by Rules or by any law cannot be altogether by-passed on the belief that principles of natural justice has been followed. In the case of State Bank of Patiala and Ors. v. S.K. Sharma SC/0438/1996 : (1996)IILLJ296SC the Supreme Court considered the effect of violation of procedure laid down for imposition of major penalty. It was observed that substantial compliance with the provisions will have to be made although for minor violations it could be examined whether principles of natural justice have been followed. It observed that there may be certain procedural provisions which are of a fundamental character whose violation is by itself proof of prejudice. The court may not insist on proof of prejudice in such cases. Taking an example of a rule providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead evidence in his defense and if such an opportunity has not been given, the Supreme Court held, the prejudice is self-evident and no proof of prejudice, as such, need to be called for in such a case. Further it held that in case the procedural provision is not mandatory the complaint or violation has to be examined from the stand point of substantial compliance but when the procedural provision violated is of a mandatory character it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest and if it is found to be former then it must be seen whether the delinquent officer has waived the said requirement. If it is found that the delinquent officer or employee has not waived it then the Court or Tribunal should make appropriate direction keeping in mind the relevant rule, which in the example was the approach adopted by the Constitution Bench in Managing Director, ECIL v. B. Karunakar SC/0237/1994 : (1994)ILLJ162SC . The respondent No. 1 in this case has violated the mandatory provision of holding an inquiry as provided in Rule 14. No further proof of prejudice is needed to hold the impugned action bad.
- The prejudice has been caused to the petitioner by not giving him any notice or intimation that the proceedings are going to be for imposition of major penalty. The five-Member Committee appointed by the respondent in its report says that they were entrusted with the talk of “looking into the alleged case of harassment”. The Committee does not say that it was appointed to inquire into the charges. The petitioner would be taken by surprise if he is told that the proceedings before the Committee were to be an inquiry under Rule 14 of CCS (CCA) Rules. Similarly, the State Complaint Committee only gave a notice that the petitioner was to appear in order to give his “view point”. Thus, the petitioner will be similarly prejudiced and surprised if he is told that the proceedings conducted by the State Complaint Committee were in fact proceedings under Rule 14 of the CCS (CCA) Rules. The first major requirement of Rule 14 of CCS (CCA) Rules and for that matter a procedure of inquiry according to principles of natural justice would be to inform the person against whom the inquiry is being conducted that the inquiry was in anticipation of imposition of major penalty or for that matter any penalty whatsoever. For such an inquiry specific charges were also required to be drawn up and intimated to the petitioner. In Canara Bank v. Debasis Das SC/0225/2003 : (2003)IILLJ531SC (para 15) the Supreme Court said that notice was the “first limb” of the principle of natural justice. Further the notice has to be clear and unambiguous. The notices asking the petitioner to appear or to give his viewpoint cannot meet the requirement of a notice for disciplinary proceedings.
- This apart, as already stated above, there has been violation of principles of natural justice by failure to allow assistance to the petitioner, to take evidence in his defense and to provide an opportunity to cross-examine witnesses of the complainant or of the department. The petitioner could not have been removed from service on the basis of the State Complaint Committee. The first question raised in the paragraph 1 of the judgment, Therefore, can be answered as follows:
Rule 14 of the CCS(CCA) Rule has to be followed for imposing a major penalty for a misconduct of sexual harassment.
- Another important thing to notice is that the State Complaint Committee did not itself consider that the proceedings before it were the inquiry proceedings as contemplated in Rule 14 nor it did contemplate that a notice to show cause as to why he should not be punished on the basis of this report could be issued straightaway by respondent No. 1. The report ended with advice, “the Department is, Therefore, advised to take action as per rules against Sh. Sandeep Khurana for sexual harassment of Mrs. Tiwari and other officers for committing irregularities and not dealing with the case in all seriousness as per law.”
- The functions of the State Complaint Committee as given by the order of 19.5.1999 was not to inquire into an allegation of sexual harassment unless a complaint was directly made to it. The Complaint Committee’s functions were to monitor the work of the Departmental Committees, to render advice to appropriate authority on the points as to whether any conduct amounted to an offence under the IPC or whether an action could be taken on a specific complaint. The other functions of the State Complaint committee included to ensure that there was no victimization of the complainant. Thus, the function of the State Complaint Committee could only be to advice and not to act as Inquiry Authority. This being the role of the State Complaint Committee, it merely advised that action as per rule was required to be taken against Sandeep Khurana for sexual harassment of Mrs. Vinita Tiwari. Since till then no process for major penalty had been initiated, respondent No. 1 could at best proceed to take action as provided under Rule 14 by issuing a charge-sheet. Action under Rule 15 could not be taken so long as the action under Rule 14 had not been taken.
- After the case was reserved for judgment, respondent No. 2 submitted an additional affidavit enclosing therewith notification/office order No. 431 dated 26.10.1999. The office order reads as under:
GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI
5, SHAM NATH MARG, DELHI
No. F.2/37/98/S.1/ Dated: 26.10.1999
ORDER No. 431
In continuation of this Department’s order No. 179 dated 19.5.99 regarding prevention of sexual harassment of working women, it is ordered that the recommendations of the State Complaint Committee will override the recommendations of the Departmental Complaint Committee. The Departmental Complaint Committee will be the subordinate unit of State Complaint Committee, which will be the supreme authority in the State to decide the cases of the sexual harassment of working women.
After taking action on the recommendations of the State Complaint Committee, the Departments/Autonomous Bodies/ Local Bodies, will submit an action taken report to this department for the kind perusal of the Competent Authority.
ADDL. SECRETARY (SERVICE)
- The Notification does not in any way affect the case in hand. The recommendations of the State Complaint Committee may override the recommendations of the Departmental Complaint Committee. The question for consideration here only is whether the petitioner could be dismissed on the recommendations of either of the two Committees, if the prescribed procedure for imposition of major penalty has not been substantially followed.
In view of the analysis as above, the impugned notice dated 9.3.2006 as well as the impugned order of punishment dated 12.5.2006 both have to be quashed. The writ petition is accordingly allowed and the impugned notice and the order are hereby quashed. Both the notice and the order be deemed to be non est and the petitioner be given all consequential benefits.