TMI Blog2019 (5) TMI 2004X X X X Extracts X X X X X X X X Extracts X X X X ..... llable. To give meaning to the word formally , a real and effective opportunity has to be granted to the officer concerned to make his comment in writing in response to the complaint. Apparently, no such opportunity was afforded. There is no indication that in respect of the complaint dated 18.09.2012, the officer was even asked as to whether he pleads guilty to the allegations made therein or not. Clause 10(11) of the Complaint Mechanism provides that complaint shall contain all the material and details concerning the alleged sexual harassment. What were the allegations in the complaint filed on 30.08.2011 after the petitioner had filed an ejahar on 26.08.2011 have already been taken note of. A perusal of the ten points would go to show that Point Nos. 1 to 6, 7(b) to (f), 9 and 10 are no way connected to the complaint dated 30.08.2011. Two inquiries had also taken place and, after more than a year later, after lodging of the complaint dated 30.08.2011, another complaint with many allegations was submitted to the Chairperson of the CCC on 18.09.2012. The CCC could not have entertained such a complaint for the purpose of a disciplinary proceeding in absence of entrustment in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner was serving as Area Organizer, SSB, Rangia. The writ petition was accordingly amended and the said order of penalty was also impugned. Relief is also sought for with regard to the prayers made before the CAT. The petitioner had prayed before the CAT for setting aside and quashing the following: (i) FAX message dated 03.09.2012 and the constitution of the Central Legal Complaint Committee under the Chairperson of Smti. B. Radhika, IPS; (ii) Memorandum dated 10.12.2012 and cancellation of the enquiry report of the Frontier Level Complaint Committee, and (iii) the enquiry report dated 28.12.2012 of the Central Complaint Committee. 3. By the FAX message dated 03.09.2012, the petitioner was directed to be intimated to keep himself available before the Central Legal Complaints Committee of which one Smt. B. Radhika, Joint Director, CCTNS-II, had been nominated as Chairman by the Ministry of Home Affairs for conducting enquiry against the petitioner in respect of complaint made by Smt. Sunita Singha and also indicating the names of the other Board Members, who were from SSB. By a Memorandum dated 10.12.2012, it was conveyed that the enquiry report dated 17.01.2012 submitted by Dr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ephonic message indicating the mobile phone number from which the message was received and, accordingly, Rangia Police Station Case No. 348/2011, under Section 66A(c) of the Information Technology Act, 2000 (as amended in 2008) was registered. The petitioner had also informed about the aforesaid threatening message to the Inspector General, SSB, Guwahati, and, by his letter dated 27.08.2011 had also requested him to transfer Smti. Sunita Singha from Rangia immediately. On 01.09.2011, Smti. Sunita Singha was transferred from Rangia against a vacant post of Senior Field Assistant (G), at her request. Consequent upon such lodging of the ejahar, Smti. Sunita Singha and her husband, who was a teacher in Manipur, had obtained anticipatory bail from this court. On 30.08.2011, Smti. Sunita Singha submitted a complaint to the Inspector General, Frontier Headquarters, Guwahati, making certain allegations against the petitioner. The husband of Smti. Sunita Singha also filed an ejahar before the Officer-in-Charge, Rangia Police Station, on 26.09.2011, wherein he acknowledged to have sent the message on 25.08.2011 out of frustration as the petitioner had subjected his wife to mental torture and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The CCC submitted its report on 28.12.2012, which was forwarded to the petitioner vide Memorandum dated 16.01.2013 asking him to submit representation to the Disciplinary Authority within fifteen days. The petitioner, by an application dated 23.01.2013, had sought for the enquiry reports submitted by the earlier two enquiry committees as well as for grant of further time, but the same was rejected by letter dated 29.01.2013. The petitioner submitted a representation on 30.01.2013 against the enquiry report submitted by the CCC praying for quashing of the enquiry report as well as for dropping the proceeding. 6. It was at that stage the petitioner approached the CAT, Guwahati, praying for the reliefs which have already been noticed, contending, amongst others, that a totally false case is hoisted against the petitioner; no Charge-sheet was served upon the petitioner and no opportunity was also given to submit detailed written statement; Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rule, 1965 (for short the Rules of 1965 ) was violated; constitution of the CCC is wholly impermissible in law; there were gross procedural irregularities in the proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the hearing of the Original Application, the report dated 13.12.2011 of the Fact Finding Enquiry Committee and the enquiry report dated 27.01.2012, submitted by the FLCC were produced. In the Fact Finding Enquiry Report dated 13.12.2011, it is noted that all the staff in the office were summoned one after another individually, but none of them stated to have seen or known the petitioner misbehaving with Smti. Sunita Singha. Further, it is also stated that most of the staff reported that due to reasons best known to the petitioner, he did not allot any work to her for about three months and, therefore, she was found very depressed. It was observed by the enquiry officer that the petitioner had failed to motivate and get work from her. However, with regard to the allegation of teasing and harassment, it was mentioned that as none of the staff had stated to have ever seen such a situation in the office, the allegation of teasing and harassment could not be ascertained. In the report of the FLCC, it was recorded that on going through the statements of the complainant, the charged officer and the statements of prosecution as well as defence witnesses, the points raised by the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Even if the allegations are pertaining to sexual harassment, the mandatory provisions of the Rules of 1965 cannot be dispensed with and, therefore, entire proceeding is vitiated, he contends. The Presenting Officer was also not appointed and the enquiry report submitted by the CCC itself demonstrates that examination-in-chief was done by the CCC. While the complaint dated 30.08.2011, even if taken on its face value, contains two-fold allegations but the CCC formulated ten points with allegations brought in by the complainant during such proceeding and, therefore, the enquiry was a farce and was a mere window dressing. Even the copy of the complaint dated 30.08.2011 was served on the petitioner on the second day of enquiry on 26.09.2012. It is further submitted by Mr. Dutta that the evidence of witnesses examined on behalf of the complainant in the CCC cannot be considered to be trustworthy inasmuch as in the enquiry before the FLCC, they had not indicted the petitioner with any wrong doing. The petitioner was also given only one hour time to nominate his Defence Assistant on 26.09.2012 and, that too, in New Delhi, which was not his place of posting and, therefore, he is gravely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... linary authority, there is no merit in the contention urged that no disciplinary proceeding was drawn up against the petitioner. In this connection, he also draws the attention of the court to the Standing Order dated 01.06.2006 on the subject of Grievances Redressal Mechanism to Redress the Grievance of Woman/Sexual Harassment at Workplace , which provides for constitution of CCC and FLCC. By producing the record of enquiry proceedings of the CCC, Mr. Keyal vehemently opposes the submission of Mr. Dutta that the proceeding was conducted in violation of the principle of natural justice or that the findings recorded by the enquiry committee suffered from any legal infirmities. Justifying the annulment of the FLCC, he submits that merely because inadvertently or erroneously a Chairperson was appointed, who is not senior to the charged officer, it cannot be countenanced that the competent authority is precluded from setting the wrong right and it cannot be also argued that even though there is gross infirmity in the constitution of the committee, such report has to be acted upon. He submits that in a case of sexual harassment formal drawal of Charge-sheet is not required and the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the report in accordance with the Rules. Pursuant to the aforesaid order dated 26.04.2004, the Rules of 1965 was amended and a proviso to Rule 14(2) was inserted vide Notification dated 01.07.2004, which was published in the Gazette of India on 10.07.2004. Proviso to Rule 14(2) reads 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. 16. The Government had also made amendments in the Central Civil Services (Conduct) Rules, 1964, incorporating therein Rule 3-C, which forbids Government servants from indulging into sexual harassment. 17. Thus, by virtue of the above provision, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttee (FLCC) at the frontier level. It provides that the Chairperson of the committee should be senior to the officer/official against whom the complaint is made. Whenever Frontier IG does not have a higher ranked woman officer to be appointed in the FLCC, the Frontier IG is required to get in touch with IG, Personnel (PRS) and seek placement of an officer from any Central Government organization. It also provides that where the required number of senior officers are not available within the organization, members should be co-opted from other Central Government Departments. In case the complaint is against the Frontier IG himself, the matter is required to be viewed/looked into at the level of CCC. 21. The Charter of the CCC and the FLCC is also well demarcated. Amongst others, the CCC is to enquire into any matter of sexual abuse in the organization - suo moto or on complaint with the option to enquire at its own level or assign the task to FLCC and monitor all cases including reports received from the Frontiers. The role of the FLCC is to enquire into any matter of sexual abuse under the Frontier and to submit enquiry report to the Frontier IG. The Complaint Mechanism is delineate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer is permissible as per Indian Evidence Act, 1872 subject to the directions as laid down by Hon'ble Supreme Court of India in AIR 2004 SC 3566-Sakshi vs. UOI Others, i.e. to say Questions put in cross-examination on behalf of accused (charged officer in our case), which relate directly to incident, should be given in writing to the Chairperson of the Complaints Committee who may put them to victim or witnesses in a language which is clear and NOT EMBARRASSING. The questions shall thus be vetted by the Chairperson of such Complaints Committee. ix) The cross-examination of witnesses should be with strict regard to decency and should not be against the dignity of the women. x) During the course of enquiry by the Complaints Committee, the question of relevance is to be decided by the Chairperson and aggrieved provided with opportunity of being heard. xi) There may not be any Presenting Officer but a Defence Assistant shall be provided during the course of enquiry and rest of the enquiry shall be completed as per the provisions provided in CCS (CCA) Rules 1965 or as per the provisions of any other Rules. xii) The statement of witnesses to be authenticated by the signature of witn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the frontier and, accordingly, in terms of the Standing Order No. 1/06, FLCC was constituted to enquire into the allegation of sexual harassment. As noticed earlier, though the FLCC had submitted report on 17.01.2012, the same was cancelled by Memorandum dated 10.12.2012 on the ground that the Chairperson of the FLCC was not an officer who was senior to the petitioner against whom the complaint was made. 23. We are unable to subscribe to the submission of the learned counsel for the petitioner that report of FLCC could not have been cancelled and the report was required to be acted upon as the Chairperson of the FLCC being from a different stream, the question of comparison of seniority did not arise. It is not the contention of the petitioner that the Chairperson was, indeed, higher in rank than the petitioner. Therefore, the significance of appropriate constitution of the Complaints Committee, in terms of the norms laid down, cannot be lost sight of. True, the authorities themselves had constituted the Complaints Committee, but the fact by itself cannot detract the competent authority from cancelling the proceeding or the report of an improperly constituted committee. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed against the petitioner and, if that was so initiated, whether the submissions advanced by Mr. Dutta with regard to the alleged infirmities in the proceeding of the CCC have substance. 25. The scope of judicial review in case of misconduct and imposition of penalty under the service jurisprudence is circumscribed as the court is only required to examine as to whether the charges have been established on the basis of a fair enquiry. We are also conscious of the fact that judicial review is not against the decision but the decision making process. 26. Mr. Dutta had submitted that no disciplinary proceeding had been initiated against the petitioner, as a disciplinary proceeding is initiated only on drawing up of substance of imputation of misconduct and misbehaviour into definite and distinct articles of charge. As, admittedly, no charge was framed, which is noted by the CCC itself, imposition of penalty of withholding of 50% monthly pension on permanent basis is wholly without jurisdiction, he contended. 27. In the case of Sandeep Khurana (supra), submission made on behalf of the employer that although no specific charges were framed against the petitioner, the petitioner was aware ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charges have been admitted. Rule 14(5)(b) prescribes the procedure when no written statement is submitted. Rule 14(5)(c) provides that the disciplinary authority may appoint a Government servant or a legal practitioner, to be known as Presenting Officer to present on his behalf the case in support of the articles of charge. 30. In respect of a complaint of sexual harassment, the proviso to Rule 14(2) provides that if a separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the Complaints Committee will hold the inquiry as far as practicable in accordance with the procedure laid down in the Rules of 1965, which necessarily implies that the Complaints Committee is not wholly and in its entirety bound by the procedure prescribed. At the same time, it cannot be countenanced that even if a separate procedure is prescribed, the same can be in derogation to principles of fairness in action. In the instant case, the Complaint Mechanism in the Standing Order provides some guidelines in the form of procedure to be adopted. 31. To whom the complaint is to be normally submitted is already indicated in an earlie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeding was initiated by issuing a Show Cause notice asking him to submit written statement. Copies of the documents to be relied upon and the names of the witnesses to be examined were also furnished to the petitioner. But the reply having not been found satisfactory, an enquiry officer was appointed and, on completion of the enquiry, enquiry report dated 11.09.2013 was submitted and, thereafter, the order dated 08.11.2013 was issued. The learned Single Judge held that there was no material to lend support to the conclusion arrived at by the CCSH. It was further observed that the respondent authorities should have examined the report of the CCSH as to whether the findings recorded therein constituted sufficient evidence to hold the petitioner guilty of the charge and, instead of doing so, treated the report of the CCSH as merely a preliminary investigation or enquiry and then initiated a disciplinary proceeding. The learned Single Judge further observed that the initiation of the disciplinary proceeding was a de novo enquiry and, even if it was considered that the same was permissible, there were procedural improprieties and, accordingly, the writ petition was allowed. The wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he only female employee in the Office. 2. I have just started devotion on my duties the AO Mr. Dilip Paul started teasing me tactically. He started making phone calls to me sometimes at night using unofficial and multi-meaning word. Even he went to the extent of visiting my residence where I stay alone with two of my children as my husband is a state Government employee in Manipur. 3. Sometimes CAP work needs close working with the officers. Taking the advantage he used to call me in his room and started teasing indirectly and unnecessarily makes to sit for hours. One day he went to the extent of saying If you want to work happily in my office, then agree to my saying . 4. I have been tolerating his acts since the last two and half years. I could neither inform my husband nor launch any written complaint against his act as it will be difficult to give evidence. Unable to bear the situation I have verbally complaint to the then DIG Shri S.C. Katoch over telephone in May 2010 about Mr. Paul uncivilized attitudes. The DIG did a favour and warned Mr. Paul for fatal consequences if he not stopped the act of teasing. 5. Since then, he stopped teasing instead begun torturing me mentally. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recording their statements. In the preliminary hearing held on 27.09.2012, the Complaints Committee, briefed the Charged Officer, Complainant and the prosecution witnesses regarding the complaint mechanism and the procedure which would be followed in the inquiry, given that it is a case of 'sexual harassment in the workplace' by presenting the guidelines of the Supreme Court in Visakha and Others Vs. State of Rajasthan and Others (AIR 1997 Supreme Court 3011) and another case title Medha Kotwal Lele and Ors. Vs. UOI and Ors (Writ Petition/'Cri. No. 173-177/1999 dated 26.04.2004). 39. Under the heading III. Complaint Mechanism to Redress the Grievances of Women/Sexual Harassment in the Workplace , it was observed by the CCC as follows: In the preliminary hearing on 27.09.2012, Shri Dilip Paul, the Charged Officer was served all the relevant documents including original complaint dated 30.08.2011 as the charge sheet. The list of documents handed over on different dates have been appended to this report. On the question of pleading guilty/not guilty of the charges leveled against him, the Charged Officer categorically denied the charges leveled against him. 40. A perusal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamination of one Mr. S.K. Singha on 11.12.2012, prosecution evidence was closed and, on the same very day, after three witnesses were examined and cross-examined on behalf of the petitioner, defence evidence was closed. However, the order-sheet dated 18.12.2012 goes to show that opportunity was granted to the petitioner to cross-examine the complainant on the basis of records provided to him by the CCC. 41. What is important to note is that a complaint dated 18.09.2012 along with five Annexures was submitted by Smti. Sunita Singha to the Chairperson of the CCC and copy of such complaint was also made available to the petitioner. In the inquiry report the above fact is not mentioned. It also does not appear that the said complaint was brought to the notice of the disciplinary authority. The CCC was mandated by the authority to inquire into the complaint dated 30.08.2011. However, it is manifest from the inquiry report that the complaint submitted on 18.09.2012 was also taken into consideration. It is noted by the CCC in the report under the heading VI. Charges which were admitted/dropped/not pressed that the petitioner did not plead guilty to any of the allegations made by the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sexual harassment as it involves sexually coloured remarks and other unwelcome physical, verbal or non-verbal conduct of sexual nature. Point 3. That Shri Dilip Paul would attempt to touch her in unwelcome sexually determined manner in the workplace, such as an incident when, on the pretext of teaching her to operate a laptop, he came closer to her and touched her shoulder and body. This charge, if substantiated, is admissible under the Vishaka definition of sexual harassment as it involves physical contact and advances and other unwelcome physical, verbal or non-verbal conduct of sexual nature. Furthermore, it may also be shown to be discriminatory if it is substantiated that Smt. Sunita Singha believed that her objection Shri Dilip Pauls conduct would disadvantage her in connection with her employment and her apprehension that it would create a hostile work environment. Point 4. That Shri Dilip Paul would often make her work much beyond office hours, often after 20:00 hours. He would then offer to drop her in his vehicle to her home. In general, Shri Dilip Paul would pressure her to drive with him in his vehicle, either when she was returning from work or in the town. This ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge her in connection with her employment and her apprehension that it would create a hostile work environment. Point 7. That Shri Dilip Paul made unwelcome sexual advances to her outside the workplace as well whereon several occasions, he propositioned her, asking her to leave her husband and marry him on the assurance that he would adop her children as his own. Since July, 2009, Shri Dilip Paul made it a habit to visit her uninvited at her residence. Smt. Sunita Singha resided in Rangia with her two children alone, she felt unable to refuse entry to her hierarchically superior officer, fearing future discrimination. These visits took place even late at night. Several incidents have been cited in the complaint in this connection. a. That Shri Dilip Paul used to make unsolicited phone calls to her, frequently at night and insist on speaking to her for long durations, sometimes up to half an hour. The phone calls were usually made between 1900 and 2000 hours, but on occasion, she also received calls from That Shri Dilip Paul as late as 4.30 a.m. The substance of these calls mostly consisted of unwelcome comments of a sexual nature with the objective of making her submit to his unwelc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... environment. Point 8. Shri Dilip Paul began victimising her for her refusal to submit to his unwelcome sexual advances soon after he learnt that she had made a complaint about his misconduct to Shri S.C. Katoch, who happened to be the DIG of another area. Mrs. Sunit Singha had telephoned Shri S.C. Katoch after the incident reported in point 10, and told him all that had been taking place. She stated that Shri Katoch informed her in a subsequent phone call that she made to him that he had issued a verbal reprimand to Shri Dilip Paul. However, a few days after the incident, Shri Dilip Paul called her into his office and asked her whether she had made a complaint against him to Shri Katoch. Mrs. Sunita Singha confirmed to him that she had indeed done so, and to scare him, told him that she had made a written complaint. From that day on, Shri Dilip Paul withdrew all the work that was assigned to her and assigned it to another employee. Thereafter, and for the next three months, Smt. Sunita Singha was made to sit idle in the office. This charge, if substantiated, is admissible under the Vishaka definition of sexual harassment as it is discriminatory in that instantiates the visiting of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay connected to the complaint dated 30.08.2011. Two inquiries had also taken place and, after more than a year later, after lodging of the complaint dated 30.08.2011, another complaint with many allegations was submitted to the Chairperson of the CCC on 18.09.2012. In our considered opinion, the CCC could not have entertained such a complaint for the purpose of a disciplinary proceeding in absence of entrustment in terms of Standing Order. 44. In Narendra Mohan Arya (supra), the Supreme Court had observed that in a domestic inquiry fairness in the procedure is a part of the principles of natural justice and that it is not possible to lay down any rigid rules of the principles of natural justice which depend on the facts and circumstance of each case but the concept of fair play in action is the basis and the inquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject-matter of the charges is wholly illegal. 45. Perusal of the order-sheets, more particularly, the orders dated 26.11.2012, 27.11.2012, 28.11.2012 and 10.12.2012 go to show that the committee asked questions to the prosecution witnesses and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elt necessary. Thus, it is evident that the CCC also played the role of prosecutor, which vitiates the proceeding. 47. With regard to Point No. 5(a), the CCC had recorded that it had noted that no witness examined by it had specific knowledge of the events listed in, wrongly recorded as 5(a) - (f). It should have been events listed in 7(a) - (f). Events at 7(a) pertain to allegation of making unsolicited phone calls at unearthly hours and, that too, for long duration. No call records were produced. However, CCC accepted the allegations by merely holding that the committee saw no reason what gain the complainant would have in fabricating the allegations and that it is understandable that no woman would be expected to confide matters of sexual nature even to her female colleagues. The CCC is to record its finding based on evidence on record and not on surmises and conjectures. It will be worthwhile to recall that the prayer of the complainant for a transfer was rejected on 24.08.2011 and based on a threatening message issued by the husband of the complainant on 26.08.2011, the petitioner had lodged the ejahar on 26.08.2011. These aspects were, however, not weighed by the CCC. 48. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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