Dhurjuti Majumdar Vs Union Of India, Through Secretary

Pradeep Kumar, J

The applicant, who was Scientist-G at Institute of Nuclear Medicine and Allied Science (INMAS), Delhi, had superannuated on 31.01.2016 after completing about 29 years of service. During his service, he was posted at Defence Institute of Physiology and Allied Sciences (DIPAS) as Scientist-G where on 04.02.2015 one Ms. Shinjini Pal, a Jr. Research Fellow (JRF) (Date of Birth 09.06.1991) made a complaint to Director, DIPAS against the applicant, alleging sexual harassment bringing out that the incident took place on 30.01.2015. The complaint reads as under:

"To,

The Director,

DIPAS, DRDO

I Shinjini Pal, JRF, recruited in Ergonomics group want to bring your attention in this matter that I worked under the supervision of Dr. Dhurjuti Majumdar faced some insulting situation & physically harassed as because 3 OA No.597/2016 he hugged me, so I am requesting you that if you kindly please change my lab, I will be highly obliged & thankful.

Incident happened on 30th Jan" 2015

Thanking you

Shinjini Pal

JRF

4th Feb‟ 2015"

An Internal Complaints Committee (ICC) comprising of five members, which included one member from a Non-Government Organisation (NGO), was constituted on 23.02.2015 as per law laid down in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [SHWW (PPR) Act] read with Rule 3C of the CCS (Conduct) Rules, 1964 and related guidelines issued in the judgment of Hon‟ble Supreme Court in Vishaka & ors. vs. State of Rajasthan & ors., (1997) 6 SCC 241. Applicant was called to give a written reply alongwith a list of documents and details of his defence witnesses and to appear and depose before the said ICC.

Applicant gave the written reply on 03.03.2015. Applicant denied all the allegations imposed on him. He submitted that he has worked extensively in the areas of Physcial Ergonomics, Cognitive Ergonomics, Design Ergonomics and Biomechanics and Homan Modeling and Simulation during his tenure at DIPAS. He has worked in several important projects of DRDO, which are of national importance. He is the only Scientist in DIPAS who run collaborative projects with many of the system engineering labs of DRDO. He has got extensive publications in peer reviewed national and International journals. He received a number of awards from DIPAS such as Science day award, Technology day award, best publication award and oration lecture from Physiological Society of India. He was invited and delivers lecturers in many of the universities and national institutes of repute. He was the Project Director in the 11th Five year research programme of DIPAS, Delhi.

He further submitted that on 30.01.2015 Ms. Shinjini Pal, the complainant came to his office during lunch time when two other SRFs were sitting and working on their PhD thesis. She stayed there for about 3-4 minutes only and left for lunch. After that between 2.30 to 3.30 p.m. a group of students from AMITY University, Nodia visited Ergonomics lab. along with the officers and Ms. Shinjini Pal, the complainant was involved in the demonstration. He, however, submitted that Ms. Shinjini Pal was not interested in working in that group and in order to change the group she had put false allegations on him just to get herself transferred from that group to another group. He submitted that the allegations of the complainant were false, intentional and malafide.

Thereafter he appeared before ICC headed by Dr. Hina A. Gokhale as Presiding Officer, and also gave affidavits from six defence witnesses. His statement was recorded and he was also cross examined. Witnesses of complainant were also cross examined. The said ICC finalised their report on 03.06.2015 and concluded as under:

"6. The Inquiry by the ICC has been conducted in accordance with the statutory provisions and the principles of natural justice. ICC has examined carefully and dispassionately all the evidences, both oral and documentary, assessed the value to be placed on each piece of evidence adduced during the Inquiry, and systematically pieced together all the evidence to create a reasonable picture of sequence of events involving allegations of sexual harassment by the Complainant. The conclusion reached by the ICC, therefore, logically flows out of the evidence on record.

During the course of the Inquiry, it was also found by the ICC that attempts were made by the Respondent to conceal the facts of the case by colluding with young research scholars of DIPAS (JRF/SRF) to fabricate a concocted sequence of events to discredit the Complainant and disapprove her allegations.

Taking into consideration all the circumstances and facts of the case, the ICC arrives at the conclusion that the allegation against the Respondent has been proved beyond reasonable doubt and he is, therefore, guilty of sexually harassing a junior colleague i.e. the Complainant, which caused her discomfort and harassment. The ICC is of the firm view that the Respondent has indulged in an act of sexual harassment of the Complainant at her work place..."

On 11.08.2015, a letter was issued to the applicant enclosing the above quoted report of ICC asking him to submit his written representation to the Disciplinary Authority (DA), which reads as under:

"1. Under Sec 13 (1) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 read with Rule 15 (2) of the CCS (CCA) Rules, 1965, a copy of the Report of the Internal Complaints Committee is forwarded herewith for submission of written representation, if any, to the Disciplinary Authority within 15 days, for his consideration under Rule 15 (2A) of the CCS (CCA) Rules, 1965.

Please acknowledge the receipt of the Report of the Internal Complaints Committee."

Thereafter,applicantsubmittedadetailed representation on 07.09.2015 to the DA, namely, Hon‟ble Union Minister of Defence. It was pleaded by the applicant that the entire enquiry was vitiated as prescribed procedure under Rule 14 of CCS (CCA) Rules, 1965 was not followed. No charge sheet was issued to him and except complainant‟s letter dated 04.02.2015, no other document was supplied to him. He further pleaded that enquiry was held over 14 sessions, but he was allowed to participate in one session only. Many other grounds were also raised by him.

Subsequently, a charge sheet was issued to the applicant on 28.01.2016, just three days prior to his retirement on 31.01.2016. A departmental enquiry was initiated against him under Rule 14 of CCS (CCA) Rules, 1965. In consequence thereof PPO was not issued to him. No gratuity was released. Feeling aggrieved, the applicant filed the present OA seeking following relief:

"A) Quash and set aside the Charge Memorandum No. DOP/07/71159/M/01 dated 28th January, 2016 alongwith Annexures I, II, III & IV (Annexure P-1 Colly) thereto issued by the respondent no.1 herein, thereby initiating fresh departmental proceedings against the applicant.

B) Set aside the Inquiry Report dt. 03.06.2015 (Annexure P-4) prepared by the Internal Complaints Committee (ICC), being completely violative of the procedure prescribed in Rule 14 of the CCS (CCA) Rules, 1965;

OR

C) Direct the respondents no.1 & 2 to forthwith release the due retiral benefits of the applicant including his gratuity;

D) Pass such other and further orders which their lordships may deem fit and proper in the existing facts and circumstances of the case."

The applicant also bring out that said Ms. Shinjini Pal had approached him in November 2014 and requested if she could work with him towards her Ph.D. The applicant was having very little time left towards his superannuation and as such was not taking new research officials under his guidance. The applicant assigned the said Ms. Shinjini Pal to one Dr. Dipti Majumdar; a lady Scientist who was working with the applicant. It was subsequently reported that said Ms. Shinjini Pal was not taking due interest in work and she wanted to leave the group of Dr. Dipti Majumdar and the entire allegation of sexual harassment was with a view to seek her transfer.

The applicant also relied upon the judgment by Hon‟ble Apex Court in Medha Kotwal Lele and others vs. Union of India and others, (2013) 1 SCC 297. The relevant part is reproduced below:

"44. In what we have discussed above, we are of the considered view that guidelines in Vishaka should not remain symbolic and the following further directions are necessary until legislative enactment on the subject is in place.

44.1. The States and Union Territories which have not yet carried out adequate and appropriate amendments in their respective Civil Services Conduct Rules (By whatever name these Rules are called) shall do so within two months from today by providing that the report of the Complaints Committee shall be deemed to be an inquiry report in a disciplinary action under such Civil Services Conduct Rules. In other words, the disciplinary authority shall treat the report/findings etc. of the Complaints Committee as the findings in a disciplinary inquiry against the delinquent employee and shall act on such report accordingly. The findings and the report of the Complaints Committee shall not be treated as a mere preliminary investigation or inquiry leading to a disciplinary action but shall be treated as a finding/report in an inquiry into the misconduct of the delinquent."

Accordingly, amendments were directed to be introduced in the relevant CCS (CCA) Rules, 1965. The amended rules read as under:

"14. Procedure for imposing major penalties

(1) xxx xxx xxx

(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 Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof. 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.

(3) Where it is proposed to hold an inquiry against a Government servant under this rule and rule 15, the disciplinary authority shall draw up or cause to be drawn up- (i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge; (ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain- (a) a statement of all relevant facts including any admission or confession made by the Government servant; (b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.

Action on the inquiry report

(1) xxx xxx xxx

(2) The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority, a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant."

In the instant case, the said ICC had already conducted an extensive enquiry and they had already cross examined the applicant as well as witnesses. The entire enquiry procedure is thus, already completed. The said ICC has already concluded the applicant as guilty. In this entire process, the full defence of the applicant has already been exposed. Accordingly, holding of another enquiry as has been ordered in letter dated 28.01.2016 renders the whole process bad in law and against principles of natural justice. The same cannot be allowed to be continued.

The respondents opposed the OA. It was pleaded that in accordance with the Vishaka guidelines, DOP&T issued an OM dated 16.07.2015. As per these guidelines, ICC is required to discharge dual responsibility and their role is defined as under:

"8. As mentioned above, the complaints of sexual harassment are required to be handled by Complaints Committee. On receipt of a complaint, facts of the allegation are required to be verified. This is called preliminary enquiry/fact finding enquiry or investigation. The Complaints Committee conducts the investigation. They may then try to ascertain the truth of the allegations by collecting the documentary evidence as well as recording statements of any possible witnesses including the complainant. If it becomes necessary to issue a Charge Sheet, disciplinary authority relies on the investigation for drafting the imputations, as well as for evidence by which the charges are to be proved. Therefore this is a very important part of the investigation.

Dual Role

In the light of the Proviso to the Rule 14 (2) mentioned above, the Complaints Committee would normally be involved at two stages. The first stage is investigation already discussed in the preceding para. The second stage is when they act as Inquiring Authority. It is necessary that the two roles are clearly understood and the inquiry is conducted as far as practicable as per Rule 14 of CCS (CCA) Rules, 1965. Failure to observe the procedure may result in the inquiry getting vitiated

As the Complaints Committees also act as Inquiring Authority in terms of Rule 14(2) mentioned above, care has to be taken that at the investigation stage that impartiality is maintained. Any failure on this account may invite allegations of bias when conducting the inquiry and may result in the inquiry getting vitiated. As per the instructions, when allegations of bias are received against an Inquiring Authority, such Inquiring Authority is required to stay the inquiry till the Disciplinary Authority takes a decision on the allegations of bias. Further, if allegations of bias are established against one member of the Committee on this basis, that Committee may not be allowed to conduct the inquiry.

In view of the above, the Complaints Committee when investigating the allegations should make recommendations on whether there is a prima facie substance in the allegations which calls for conducting a formal inquiry. They should avoid making any judgmental recommendations or expressing views which may be construed to have prejudiced their views while conducting such inquiry."

It was accordingly pleaded that the enquiry report already submitted on 03.06.2015 is a first stage enquiry and now the enquiry contemplated as per charge sheet dated 28.01.2016 is the second stage enquiry and it is necessary to be completed as per DOP&T OM dated 16.07.2015. Accordingly, the process of enquiry cannot be interdicted at this stage. It was thus pleaded that OA is required to be dismissed.

Matter has been heard at length. Sh. V.Hari Pillai, learned counsel represented the applicant and Sh. Gyanendra Singh, learned counsel represented the respondents.

13.1 Respondents have also filed two MAs as under:

(i) MA No.2538/2016 - This is filed by the respondents to submit certain additional affidavit. Since OA has been heard and decided, this MA is infructuous. Hence the same is disposed off.

(ii) MA No.405/2018 - Applicant arrayed Dr. Hina Gokhale, Chairperson of ICC as a respondent in her personal capacity. This MA is filed by the respondents not to array respondent no.3 in her personal capacity but in her official capacity as Chairperson of ICC. This MA is allowed.

As per the Medha Kotwal Lele (para 8 supra) judgment by Hon‟ble Apex Court, relevant modifications to CCS (CCA) Rules have already been incorporated which specify the procedure for enquiry and that the ICC in sexual harassment cases shall have the status of an enquiry officer.

The purpose for specifying these procedures is to afford natural justice. It is with this in view that an express provision has been made that if a case is going on against a person in a Court of law and departmental charge sheet is also issued, the departmental enquiry is kept in abeyance till the time the Civil Court procedure is completed. The only exception is if the Court proceedings are taking unduly long time and in such a case, the departmental enquiry can also proceed. This has been done with a view that the defence exposed in the departmental enquiry may prejudice the case of the charged official in the Court of law.

In keeping with this ratio, it is very clear that the enquiry report finalised by the ICC on 03.06.2015 has already taken the statement of the applicant as well as that of his defence witnesses and they have been cross examined also. The entire defence of the applicant is thus already exposed.

With this in view, it will not be correct to plead that the said proceedings by ICC should be treated as preliminary and another enquiry is to be held now. This is especially true as ICC in instant case has already concluded the applicant to be guilty. (Para 3 supra). Holding of another enquiry, will prejudice the principles of natural justice to the charged official.

Moreover the letter issued to the applicant on conclusion of enquiry by ICC (para 4 supra), makes it very clear that enquiry is already done under Rule 15 (2). When such is the express notation, holding of a second enquiry is not permissible except when the Disciplinary Authority has found certain deficiencies in the enquiry report and remitted it back to the enquiry officer (ICC in instant case). This is, however, not the case in this OA as a new enquiry has been ordered (Para 6 supra).

In view of the foregoing, the respondents are directed to treat the ICC report dated 03.06.2015 as the final enquiry report (para 3 supra) and treat the letter dated 07.09.2015 (para 5 supra), submitted by the applicant, as his defence and take appropriate decision on the same with regard to quantum of punishment or otherwise as per merits. OA is disposed off with these directions. No order as to costs.