Mohan Pyare, Member (A)
1. Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
“(i) The Hon’ble Tribunal may graciously be pleased to quash the impugned inquiry report dated 18.04.2012 (Annexure-A-1) and impugned punishment order dated 5-9-2012 and also impugned appellate order dt 28.1.2013 (Annexure A-2/A) which are illegal and against the law of natural justice and against the Rule and further direct the respondents to reinstate the applicant with all consequential benefits.
(ii) The Hon’ble Tribunal may further graciously be pleased to pass any other appropriate orders in favour of the applicant.
(iii) To impose cost on the respondents for harassing the applicant and payable to the applicant.”
2. A brief account of the facts involved in this case are that the applicant was appointed as Postal Assistant under the Control and Supervision of the respondents on compassionate ground on 08.06.1992. While working as Postal Assistant, the applicant was served with major punishment charge sheet under Rule 14 of C.C.S. (C.C.A.) Rules, 1965 vide Memo dated 30.11.2009 on the alleged charges of sexual harassment of his colleague i.e. Smt. Urmila, Postal Assistant Varanasi Cantt. On complaint of Smt. Urmila, Postal Assistant, a joint inquiry was done by the Inquiry Officers and they submitted a joint inquiry report and gave a report that there was no substantial evidence produced by the complainant against the applicant, therefore, the applicant cannot be held guilty. The aforesaid complaint dated 05.09.2009 was also made to Sexual Harassment Complaint Committee with letter of Circle Office dated 20.05.2011. The aforesaid Committee was formed by the department under the Guidelines and Norms laid down by the Hon’ble Supreme Court in the case of Vishaka and others Vs. State of Rajasthan and others. After the aforesaid instructions dated 13.02.1998, amendment was made in the C.C.S. (Conduct) Rules, 1964 in rule 3 and Rule 3(C) was added for making the conduct amounting to sexual harassment of women workers as misconduct. Thereafter, the disciplinary authority issued letter dated 18.06.2012 and asked the applicant to submit his representation within 15 days against the inquiry report submitted by the Sexual Harassment Complaint Committee which was supplied through the letter. The applicant submitted his detailed representation against the inquiry report submitted by the Sexual Harassment Complaint Committe dated 18.04.2012 on 25.06.2012 denying the charges. Thereafter, the disciplinary authority issued letter/ Memo dated 19.07.2012 vide which charge memo dated 30.11.2009 was dropped with immediate effect. After dropping the chargesheet, disciplinary authority issued letter dated 23.07.2012 and again asked for the representation against the Sexual Harassment Compliant Committee’s inquiry report dated 18.04.2012 and the applicant represented to him and told that as the charge sheet was dropped vide letter dated 19.07.2012, there is no way or existence of the inquiry report or disciplinary proceedings against the applicant vide his representation dated 26.07.2012. The disciplinary authority again issued letter dated 02.08.2012 and again asked the applicant to submit his representation against the inquiry report submitted by the Sexual Harassment Complaints Committee. The applicant represented to the disciplinary authority and reiterating his stand. The disciplinary authority again asked the applicant to submit his representation against the inquiry report dated 18.04.2012 vide its letter dated 13.08.2012 and the applicant represented through the letter dated 21.08.2012. Subsequently, the disciplinary authority passed the impugned order dated 05.09.2012 vide which the punishment of compulsory retirement was imposed upon the applicant on the basis of the inquiry report submitted by the Sexual Harassment Complaints Committee dated 18.04.2012. The applicant made an appeal to the Director Postal Services, Allahabad Region, Allahabad on 17.09.2012 against the impugned punishment of ‘Compulsory Retirement’ dated 05.09.2012. The appellate authority rejected the appeal of the applicant vide its order dated 28.01.2013.
3. We have heard learned counsel appearing for the parties.
4. Submission of learned counsel for the applicant is that the action of the respondents is against the Rule and against the principles of natural justice. He submits that the harsh punishment of compulsory retirement has been passed by the disciplinary authority on the basis of inquiry report submitted by Sexual Harassment Complaints Committee dated 18.04.2012 after dropping the charge sheet dated 30.11.2009 on 19.07.2012. He states that after insertion of Rule 3C in C.C.S. (Conduct) Rules 1964 and Rule 14(2) in C.C.S. (C.C.A.) Rules, 1965 in case of sexual harassment cases, full opportunity should be given to the charged official and full procedure should be followed as provided in Rule 14 of C.C.S. (C.C.A.) Rules, 1965, which is not followed in the case of the applicant. He states that the applicant was not provided any listed document along with the charge sheet except the complaint dated 05.09.2009. It is further submitted that as there was no other procedure laid down to be followed by the Sexual Harassment Complaint Committee as such this Committee should have followed the procedure laid down in Rule 14 (inserted in Rule 14(2) of C.C.S. (C.C.A.) Rules 1965 as per strength of Government of India’s instruction dated 21.07.2009 and 07.08.2009). Rules 14(2) of C.C.S. (C.C.A.) Rules, 1965 is reproduced below:-
“14(2):- Whenever the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Govt. servant, it may itself inquire into, or appoint under this rule or under the provisions of Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof;
Provided that where there is a compliant 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 Inquiry 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.”
5. Referring to the aforesaid rule, learned counsel for the applicant argued that the Sexual Harassment Complaint Committee proceeded with the inquiry without following the procedure given in the Rule 14 of C.C.S. (C.C.A.) Rules, 1965. He submits that the Committee recorded the statements and heavily relied on that but did not give the opportunity to examine or cross-examine the witness of the case, hence, inquiry committee has violated Rule 14(14) of C.C.S. (C.C.A.) Rules, 1965. He further argues that the charges against the applicant have been proved without any evidence or proof and that the disciplinary authority issued a letter dated 19.07.2012 vide which Charge Memo dated 30.11.2009 was dropped with immediate effect, as such from that date no charge sheet was pending against the applicant. It is further submitted that the aforesaid order does not contain any right reserved by the disciplinary authority for issuing a subsequent charge sheet but only reserved the right to further action. He further contends that the impugned punishment order has been passed by the incompetent authority as the applicant was appointed on compassionate ground with the approval of Chief Post Master General U.P. Circle, Lucknow, as such in the case of the applicant only C.P.M.G. U.P. Circle Lucknow is the competent authority to pass the punishment order. It is next argued that the appellate authority has mechanically rejected the appeal of the applicant without considering the points raised in the appeal dated 17.09.2012. He further contends that the appellate authority also did not consider the fact that the alleged charges are also liable to be tried under criminal proceedings but deliberately the authorities did not choose it being fully aware that charges could not be proved.
6. Submission of learned counsel for the respondents is that while the Postmaster General, Allahabad Region Allahabad was in camp at Varanasi and on visit to Varanasi Cantt H.O. on 05.09.2009, a lady employee namely Smt. Urmila Devi, the then Postal Assistant, Varanasi Cantt H.O. now O.A.D.O. Varanasi West Division submitted a compliant dated 05.09.2009 addressed to the above said officer through SPOs Varanasi West Division alleging sexual harassment against the applicant mentioning therein that he is showing filthy/ indecent letters alongwith the vouchers of eMOs/MOs. Although she had verbally warned him not to repeat such occurrence, he continued insertion of these letters. On the verbal instructions of above said officer, the competent disciplinary authority i.e. SPOs Varanasi West Division immediately placed the applicant under suspension vide memo dated 05.09.2009 w.e.f. from 05.09.2009 A/N. Thereafter, a joint enquiry was entrusted to the ASPOs West Sub Division and ASPOs (T) of this office. The joint enquiry report was submitted by them on 12.10.2009 in which the Committee on the basis of non-submission of any filthy/ indecent letter reported that without any such proof the allegations made against the applicant cannot be sustained. In view of instructions contained in Rule 3(C) of CCS (Conduct) Rules 1964, a disciplinary proceeding under rule-14 of CCS (CCA) Rules 1965 initiated vide this office memo dated 30.11.2009 and the suspension of the applicant was revoked vide memo dated 30.11.2009. The final inquiry report was submitted on 05.05.2012 which was sent to the applicant on 07.05.2012 for submitting his defence representation within 15 days. The applicant submitted his representation dated 18.05.2012 received in this office on 21.05.2012 but the decision upon this could not be taken because in the meantime the case was taken up by Circle level Sexual Harassment Complaint Committee constituted by Circle Office vide their letter dated 09.08.2011 and inquiry in this case was also going on at their level, in which all the concerned documents, concerned persons were called for by the said Committee for inquiring/ statements including the applicant.
7. Learned counsel for the respondents further argues that the above said Sexual Harassment Complaint Committee after careful consideration submitted their Inquiry Report dated 18.04.2012 in which the Sexual Harassment Complaint Committee proved all the charges leveled against the charged official. Copy of the aforesaid report was sent to the charged official vide letter dated 18.06.2012 for submitting his defence representation within 15 days. In its response the applicant demanded copy of the earlier inquiry report dated 05.05.2012 submitted by the I.O. in Rule-14 case which was already supplied to him vide letter dated 07.05.2012 and was also apprised with the facts and again his representation dated 25.06.2012 could not be considered since two inquiries were made in the instant case, the directives were called for from the R.O. Allahabad and C.O. Lucknow for dropping one of the case vide letters dated 20.06.2012 and 27.06.2012. Consequently, the disciplinary proceedings initiated under Rule-14 of CCS (CCA) Rules 1965 vide memo dated 30.11.2009 was dropped vide memo dated 19.07.2012 without prejudice to any other actions that Disciplinary Authority can initiate as per telephonic instructions from R.O. Allahabad which was later on confirmed vide R.O. Allahabad letter dated 03.08.2012. In such as scenario, the applicant, vide this office letter dated 23.07.2012 was called for to submit his defence representation afresh upon inquiry of Sexual Harassment Complaint Committee dated 18.04.2012 as the disciplinary proceeding under Rule-14 had been dropped. In response, the applicant submitted his representation which was received on 27.07.2012 in which he reiterated that since the proceedings against him has been dropped vide memo dated 19.07.2012, the allegations are baseless and he has nothing to say. Thus, he was again asked to submit his defence vide letter dated 02.08.2012 but he repeated the same story vide his representation dated 02.08.2012 which was received on 07.08.2012 and he was finally asked vide this office letter dated 13.08.2012 to submit his defence upon Sexual Harassment Complaint Committee report dated 18.04.2012 by 23.08.2012 otherwise the matter will be decided as if he has nothing to say upon the report. In its compliance, the applicant finally submitted his defence representation dated 21.08.2012. After going through the inquiry report of the Committee as well as all the documents/ records/ statements on merit, the applicant was ordered to retire compulsorily from Government Service in order to save the image of the department vide memo dated 05.09.2012. It is further argued that the order passed is by the competent authority i.e. SPOs Varanasi West Division with the approval of which his appointment was initially made.
8. Learned counsel for the applicant has reiterated his arguments in the rejoinder and further contended that the Sexual Harassment Complaint Committee should have conducted the inquiry as per provision of Rule 14 of CCS (CCA) Rules 1965, if the said Committee has not developed its own procedure and in the case of the applicant, the said Committee had not developed any procedures hence, without following the procedure given in Rule 14 the report should not be taken as valid inquiry report as held by the Principle Bench of this Tribunal in the case of Shri Banwari Lal Vs. Union of India and others (OA/216/2010) decided on 21.04.2011. The applicant has also relied upon the judgement of the Hon’ble Delhi High Court in the case of Sandeep Khurana Vs. Delhi Transco Ltd. And Ors [135 (2006) DLT 346] dated 17.11.2006 in support of his arguments.
9. We have considered the rival submissions of learned counsel appearing for both the parties and perused the entire documents on record.
10. Before proceeding any further, it would be relevant to quote an observation made in the case of “Sandeep Khurana Vs. Delhi Transco Ltd. And Others reported in 135 (2006) DLT 346 which is as under:-
"30. 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 even 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"
11. In O.A.No.216/2010 decided on 21.04.2011, the Principal Bench of this Tribunal has held that:
“13. In view of above, it is now settled law that even though the charges of Sexual Harassment can be looked into by the Complaint Committee but it has to follow the procedure prescribed under Rule 14 (2) of the CCS (CCA) Rules. In the instant case, neither any charge sheet was given to the applicant nor copy of the compliant nor complainant was examined in his presence nor applicant was given an opportunity to cross examine the complainant or other witnesses. It can thus safely be concluded that the procedure laid down under Rule 14 has not been followed. The result would be the orders passed by authorities would be not sustainable in law.
14. In view of above, we quash orders dated 13.7.2008 and 11.8.2008. However, we remit the matter back to the authorities for starting the proceedings from the stage of giving charge sheet to the applicant and proceed thereafter in accordance with law. The enquiry shall be completed within a reasonable period subject to co-operation of the applicant, in any case not later than 3 months from the date of receipt of a copy of this order under proper intimation to the applicant.”
12. It has also been enunciated in the case of Sandeep Khurana Vs. Delhi Transco Ltd. And Others (Supra) as relied upon by the applicant that whenever an inquiry is contemplated the disciplinary authority must provide 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.
13. Since the Sexual Harassment Complaint Committee is deemed to be an Inquiry Authority appointed by the Disciplinary Authority as per CCS (CCA) Rules, 1965, and in absence of any other procedure prescribed for the same, it is meant to proceed as per Rule 14(2) of the CCS (CCA) Rules, 1965, we find no reason to believe that it was impractical for the concerned authorities to serve the applicant with a fresh charge sheet in accordance with rules after the charge memo dated 30.11.2009 was dropped for want of material evidence. The respondents argue that the applicant was asked to submit his defence representation afresh upon inquiry of Sexual Harassment Complaint Committee dated 18.04.2012 as the disciplinary proceeding under Rule-14 had been dropped. Nevertheless, the respondents were under the obligation to proceed as per the procedure laid down in the aforesaid rule even though the inquiry was being continued by the Sexual Harassment Complaint Committee. Although we make no comments about the imputability of the applicant in the case of sexual harassment since the disciplinary proceedings are different from the criminal proceedings and in the judgement of the Hon’ble Supreme Court in the case of West Bokaro Colliery (TISCO Ltd.) v. Ram Pravesh Singh reported in (2008) 3 SCC 729, it has been held -“20….It is well-settled principle of law that yardstick and standard of proof in a criminal case is different from the one in disciplinary proceedings. While the standard of proof in a criminal case is proof beyond all reasonable doubt, the standard of proof in a departmental proceeding is preponderance of probabilities”-, yet there is an event of procedural lacuna in the present case which renders it questionable in the eyes of law as in the present case no specific imputation was given to the applicant as per the procedure prescribed under CCS (CCA) Rules, 1965. The earlier charge sheet issued to the applicant and the joint inquiry report were dropped without any saving clause that authorities have reserved their right to issue a fresh charge sheet. Therefore, in this case the procedure as per CCS (CCA) Rules, 1965 has not been followed.
14. In view of the above deliberations, we are of the considered view that the impugned inquiry report dated 18.04.2012, impugned punishment order dated 5-9-2012 and also impugned appellate order dated 28.1.2013 are liable to be quashed and are, accordingly, set aside. The respondents are hereby directed to start the inquiry afresh from the stage it has been vitiated i.e. by giving proper imputation of charges against the applicant and then the Sexual Harassment Complaint Committee shall assume the role of the Inquiry Officer and conduct the inquiry in accordance with the CCS (CCA) Rules, 1965 and submit its report after which due action may be initiated by the competent authority based on the outcome of that inquiry report/ report of the Compaint Committee. The said exercise should be completed within three months from the date of receipt of a certified copy of this order.
15. Thus, the O.A. stands disposed of with the above directions. All associated M.A.s also stand disposed of. No order as to costs.
