Full Text
HIGH COURT OF DELHI
JUDGMENT
MAJOR SHUBHRA VERMA …..Petitioner
Through: Mr. Ashish Chauhan, Ms. Sonal Chauhan and Ms. Sonali Gambhir, Advs. along with the petitioner in person.
…...Respondent
Through: Ms. Monika Arora, CGSC with Mr. Subhrodeep Saha and Ms. Radhika Kurdukar, Advs.
1. The petitioner is seeking initiation of the contempt proceedings against the respondent for the alleged wilful disobedience of the directions of this Court contained in the order dated 19.02.2024 passed in W.P.(C) No.2437/2024 titled “Maj Shubhra Verma vs Union of India & Ors.”
FACTUAL BACKGROUND:
2. In a nutshell, the petitioner, a Permanent Commissioned Whole Time Lady Officer [“WTLO”], was appointed in 2006 through the UPSC[1] under the National Cadet Corps (Whole Time Lady Officers)
1 Union Public Service Commission Recruitment Rules, 1995 [“1995 Rules”]. Her appointment and terms of service are governed by Appendix 'A' dated 12.03.1997. Presently, she is serving as the Administrative Officer in the rank of Major with the 3 Delhi Girls Battalion, National Cadet Corps [“NCC”]. The respondent, functioning as the Director General of the National Cadet Corps [“DGNCC”], operates under the provisions of the National Cadet Corps Act, 1948 [“NCC Act”], which is administered by the Ministry of Defence.
3. The genesis of this petition lies in an assertion by the petitioner that she had been a victim of sexual harassment at the hands of a male officer and had filed a complaint through the SHE-BOX portal (Ref. No. WCD-24624) on 07.09.2022 regarding alleged misconduct by her Commanding Officer during her posting in Patna. Aggrieved by the findings and recommendations of the Internal Complaints Committee [“ICC”] dated 23.09.2023, which were communicated to her on 26.12.2023, the petitioner approached this Court seeking to set aside the supplementary recommendations of the ICC. On the Court‟s suggestion, she withdrew her petition (W.P. (C) No. 2102/2024) on 13.02.2024, as an alternative remedy was available under Section 18 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [“POSH Act”].
4. Subsequent to the withdrawal of her petition, the petitioner submitted a representation dated 14.02.2024 to the DGNCC. It is, however, claimed that she did not receive any substantive response to the said representation. She then filed W.P. (C) No. 2437 of 2024, which led to the passing of the order dated 19.02.2024, upon which this Court directed the respondent to consider the petitioner‟s representation as an appeal under Section 18 of the POSH Act and further directed the respondent to forward the appeal to the Appellate Authority constituted under the CCS (CCA) Rules[2]. The grievance of the petitioner is that the respondent has failed to comply with the order of this Court, and instead, issued an utterly irrelevant and evasive response, which is claimed to be exemplified by their communication dated 10.04.2024, which purportedly addressed matters unrelated to the specific directives of this Court.
5. The petitioner contends that the respondent, in contravention of the CCS Rules, lacks the authority to function as either the Disciplinary Authority (DA) or the Appellate Authority [“AA”] for Group 'A' employees such as the case of petitioner. She claims that in accordance with the guidelines for disciplinary cases applicable to civilian officers under the NCC Order (January-December 1980), the Ministry of Defence is designated as the Disciplinary Authority “DA”, while the President of India serves as the “AA” for such employees. The petitioner further highlights the inconsistency in the respondent‟s stance, wherein the DGNCC alternately claims to be the DA or AA, as recorded in various submissions.
6. The Petitioner submits that the DGNCC has not produced any official notification or delegation of authority demonstrating its power to act as the DA or AA in her case. Responses received under the RTI Act, 2005[3] dated 03.07.2024 and 10.05.2024, have been evasive, and Central Civil Services (Classification, Control and Appeal) Rules, 1965 Right to Information Act, 2005 no credible evidence has been presented to validate the respondent‟s position.
7. The petitioner further argues that the process adopted by the DGNCC in handling her representation under the POSH Act violates established rules and principles of natural justice, particularly the doctrine of audi alteram partem. The DGNCC‟s conduct in acting simultaneously as the DA or AA undermines impartiality and procedural fairness.
8. Learned counsel for the petitioner in her submissions relied on decisions in Wasi Ahmed v. State of U.P. Thru. Additional Chief Secy. Prin. Secy. Election Anubhag, Lko.4; Ved Parkash Gupta v. Haryana State Federation of Consumers Cooperative Wholesale Stores Limited[5]; Amar Nath Chowdhury v. Braithwaite and Co. Ltd.6; and Cantoment Executive Officer v. Vijay D Wani[7].
9. The respondent, through a short note dated 24.10.2024, submits that the petitioner had previously filed a complaint of sexual harassment, which was duly examined by the Internal Complaints Committee (ICC), which vide its report dated 23.09.2023 concluded that no direct, indirect, or circumstantial evidence was found against the accused and consequently, the complaint was closed. It is further stated that the representation of the petitioner has been considered as an appeal under Section 18 of the POSH Act in terms of the service conditions which are governed by the Central Civil Services 4 2024:AHC-LKO:69932 (2008) 09 P&H CK 0059
(Classification, Control, and Appeal) Rules, 1965 [“CCS(CCA) Rules”], as the petitioner holds the rank of Major and is classified under the General Central Service – Group „A‟ category. Reference is also made to Office Memorandum F.No. 11012/5/2016-Estt.A-III dated 02.08.2016, which provides that, in cases where the ICC does not recommend any action against an employee in a sexual harassment case, the Disciplinary Authority (DA) must provide the complainant with a copy of the ICC report and consider any representation submitted by the complainant. Such representation is to be treated as an appeal under Section 18 of the POSH Act. It is stated that in compliance with the directions of this Court and the applicable service rules, the petitioner‟s representation was duly considered by the Director General, National Cadet Corps (DG NCC), as an appeal under Section 18 of the POSH Act in accordance with law and informed of the decision on 10.04.2024.
ANALYSIS & DECISION:
10. I have given my thoughtful consideration to the submissions made by the learned counsels for the parties. I have also perused the relevant record of the case.
11. First things first, it would be relevant to reproduce the directions which were passed by this Court as contained in the order dated 19.02.2024, which read as under: “W.P.(C) 2437/2024 & CM APPLs. 10009/2024, 10010/2024
1. The Petitioner has approached this Court with the following prayers:- (a) issue a writ of certiorari setting aside/quashing the Supplementary Report/Recommendation submitted by ICC on 23.09.2023 (sent to the Petitioner vide covering letter dated 14.12.2023 received by Petitioner on 26.12.2023) and all subsequent orders/departmental inquiry initiated vide convening order dated 19.01.2024; and (b) issue a writ of mandamus, thereby directing and commanding the Respondent No.3/DG NCC to decide the representation/appeal of the Petitioner dated 14.02.2024 in case has the power/authority to adjudicate;
(c) issue a writ of mandamus, thereby directing and commanding the Respondents to re-constitute a fair and impartial ICC as per the mandate of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 preferably by Respondent No.1 in Delhi.”
2. When this Court pointed out that an alternate remedy exists under Section 18 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013, the learned Counsel appearing for the Petitioner states that neither the Petitioner nor the Respondents are aware of the correct Appellate Forum where the appeal should be considered.
3. Learned Counsel for the Petitioner points out to the representation dated 14.02.2024 given by the Petitioner to the Respondents. ParagraphNo.2 to 6 of the said representation read as under:
4. Pertinent to mention, when the undersigned applied for Child Care leave in Jan‟ 2024, I was informed by NCC Directorate Delhi vide its letter dated 30.01.2024 that my application for Child Care Leave will be considered after completion of inquiry, which has been ordered by my Gp HQ vide letter No. GPC/A/Offr/Inquiry/2024 dt 19 Jan
2024. The undersigned was not aware of the initiation of inquiry and on 09.02.2024, 1 received the intimation regarding assembly of departmental inquiry committee at Simulator Room (opp CO 2 DGA's office), B-6 Safdarjung Enclave, Delhi on 12th February 24 at 1030 hours and another letter asking me to provide a Para wise written response to the complaints mentioned in Para 2 of convening order by 13th February 2024, failing which it will be presumed that you have no defence to offer and inquiry will proceed ex-parte. After receipt of the said letters, I have written letter dated 12.02.2024 to the Inquiry Officer seeking two week time to submit a detailed reply to the complaints which are running into more than 50 pages.
5. Aggrieved by the supplementary recommendation(s) which is vitiated by grave error on law and facts since inception, I preferred a Writ Petition Civil 2102/2024 before the Hon'ble Delhi High Court wherein the said petition has been withdrawn with liberty to exhaust the alternative efficacious remedy available under Section 18 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal Act, 2013) vide its order dated 12.02.24. Thus, I am enclosing herewith copy of my writ petition which may be treated as my representation and for further action at your end.
6. In view of above, I would also like to request your goodself to keep the ongoing Departmental Inquiry ordered vide NCC Gp HQ 'C' Letter no. GPCA/A/Offr/Inquiry/2024/ 3940 (A) dated 19.01.2024 in abeyance till the disposal of my present representation.”
4. The Respondents are directed to consider the aforesaid representation given by the Petitioner as an appeal under Section 18 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013. The Petitioner is permitted to raise additional submissions, if any, within a period of one week from today.
5. The Respondents are directed to forward the appeal to the Appellate Authority constituted under the CCS Rules which according to the learned Counsel for the Respondents is applicable on the Petitioner. The Appellate Authority is directed to decide the appeal within a period of four weeks from the date of receiving the appeal.
6. With these observations, the writ petition is disposed of, along with pending application(s), if any.
7. Liberty is granted to the Petitioner to approach this Court again for any further directions as may be required, if any.
8. The Order be given Dasti under the signature of the Court Master.”
12. Pursuant to the aforesaid order, the petitioner wrote a letter dated 14.02.2024 and another one on 20.02.2024 (only the latter is filed as Annexure P-2) to the DGNCC. It appears that in the earlier letter dated 14.02.2024 she had requested for a personal hearing/interview consequent to directions of this Court for decision on her representation. In the second letter dated 20.02.2024 she requested the DGNCC that her appeal be referred to the AA constituted under the CCS Rules in terms of Section 18 of the POSH Act. Evidently, a reply dated 10.04.2024 was received from the DGNCC, whereby it was informed that her representation was considered para-wise and it would be expedient to re-produce the contents thereof which read as under: “(d) Para 5.4. You were the Presiding Officer of the standing ICC of NCC Group Patna vide NCC Group HQ Patna letter No 0108/3A/3566.3576 dt 19 May 2022. Once you became the complainant, the ICC was re-constituted with a woman ANO as the PO. Owing to your objection on the seniority status of the PO, the ICC was re-constituted at the Dte level vide NCC Dte, B&J Patna letter No 2062/DV/Patna/Pers dt 19 Dec 22 with PS-12519H Maj Meenakshi of NCC Gp HQ, Ranchi as the PO, who had adequate seniority. (e) Para 5.5. The Convening Order for assembling the ICC was issued on 19 Dec 22 and thereafter the ICC assembled on 10 Jan 23 and proceeded with its investigation. Your contention that the Respondent No 2 did not inform the Respondent No 1 regarding the action taken / status of the ICC proceedings is false. Reply to Govt of India, MoD letter No F Np 1/1/2021-ICC (MoD Sectt) dt
22 Mar 23 was fwd vide NCC Dte, B&J letter No 2062/DV/Patna/Pers dt 10 May 23. (f) Para 5.6. As per Section 13 (4) of the Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act, 2013 one set of the ICC proceedings along with the findings and opinion were fwd to NCC Gp HQ, Patna within the stipulated time period vide NCC Dte, B8J letter No 2062/DV/Patna/Pers dt 10 May 23 (g) Para 5.7. Respondent No 2 through its subordinate NCc Gp HQ, Patna has replied as well as issued an advisory to you vide letter No 2062/DVIPatna/Pers dt 26 May 23. (h) Para 5.[8] The contention is false. As regarding NCC Dte, B&J, interview of the ADG was granted vide NCC Dte, B&J letter No 2062/DVIPatna/Pers dt 15 Jun 23. However, you had preferred to move out on leave cum posting wef 16 Jun 23 as per request I application received vide NCC Gp HQ, Patna letter No 120/offrs/pers/23/9191 dt 16 Jun 23.
(i) Para 5.[9] The ICC was reassembled on the order of NCC Dte.
B&J vide letter No 2062/DVIPatna/Pers dt 18 Jul 23. NCC Dte, Delhi has directed you to attend ICC assembling at NCC Gp HQ Patna on 20 Jul 23 vide DGNCC movement letter dt 17 Jul 23 and the same was conveyed vide NCC Dte, Delhi letter No 1003/0ffrs Gen/Pers (A) dt 13 Jul 23. On receipt of the detailment, a protest appln was sent directiy to DGNCC by you stating that the "detailment was at short notice and re- assembly of the ICC with the previous composition is not appropriate and is against order of higher authority." You further stated that you were in the process of settling down as a single parent with two kids to look after, in view of which, you could not proceed to Patna.
(m) Para 5.12. DGNCC was informed vide NCC Dte B&J letter
No 2862/DV/Patna/Pers dt 25 Jul 23 that you did not report for the ICC which had re-assembled on 20 Jul 23. You again did not report for the ICC on 16 Aug 23 and 23 Aug 23 as directed by DGNCC letter No 8813/B&J/43/405/NCC HQ/MS (DV) dt 09 Aug 23 and ibid No dt 17 Aug 23. NCC Dte Delhi has given you another opportunity to present yourself before ICC on 16 Aug 23 vide DGNCC letter dt 03 Aug 23 and the same was conveyed by NCC Dte Delhi letter dt 07 Aug 23 to the concerned Gp HQ to further disseminate to the Unit. On verbal information given by the CO on 10 Aug 23 that you require to proceed to Patna to attend the ICC commencing wef 16 Aug 23, you suddenly complained of foot pain & the same day and went to Base Hosp, Delhi Cantt and got SIQ for 48 hrs. The movement order to proceed to Patna was given to you on 14 Aug 23 (with SOS from 15 Aug 23 (FIN). However, you refused to accept the Mov Order with a protest appln dt. 14 Aug 23 encl with the returned Mov Order. You once again reiterated that the re-assembling of the ICC as unlawful and fictitious in nature. You further furnished a GOI letter which recommended that the ICC may be constituted at HQ level or the charged officer may be transferred from the office, where the ICC is being constituted. (n) Para 5.13 Based on GOI recommendation and the letters written directly by you to DGNCC, the venue for the ICC was changed to Danapur Mil Stn from NCC Dte. B&J Patna and rescheduled to 23 Aug 23. Accordingly, a movement order was given to you on 21 Aug 23 (F/N). However, the mov order was returned by you on 21 Aug 23 with a written statement that “This Movement Order found in contravention to GOI orders on the subject vide letter No. 1/1/2021-ICC (MoD) Sectt dt 14 Aug 23” (q) Para 5.16 The contention is not agreed to. The ICC was in progress and you had avoided yourself appearing before it on frivolous accounts. Adequate opportunity was given by NCC Dte. Delhi to attend the ICC pcdgs as scheduled. (w) Para 5.23 As per Section 11(3) (a) of the Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act, 2013, the ICC has the same powers as are vested in a civil court for summoning and enforcing the attendance of any person and examining him/her on oath. Exercising the powers, the PO of the ICC had written the letter dt 29 Aug 23 to the CO, 3 Delhi Girls Bn NCC to instruct Maj Shubra Verma to be present for the Video Conference (VC) on the given day and time by the ICC. The day and time was to be given subsequently. However, your reply read vide 3 Delhi Girls Bn NCC letter dt 04 Sep 23 was derogatory and displayed scant respect that you had for the office and authority of the ICC and reflected on your intention of not deposing over the
VC. You were further cautioned by DGNCC as had been brought on record by you in Writ Petition. No attempts were made by you to make yourself available for the VC, pending which the ICC was concluded.”
13. In summary, it is evident that no personal hearing was afforded. Further, what the decision on her representation by the DGNNC bring out that her technical objections regarding constitution of the Member of the ICC were acceded to and a fresh ICC was constituted to look into her complaint but she adopted dilatory tactics and deliberately failed to appear before the ICC so much so that although she was afforded opportunity to be present through video conferencing she avoided appearing before the ICC. It was only subsequent to this that letters were written by the petitioner dated 16.04.2024 and 24.04.2024 seeking to assail the authority of the DGNCC in performing his duties as DA, which needs to be examined.
14. Insofar as the issue of competency of DGNCC to act as DA under Section 18 of the POSH Act is concerned, it is pertinent to mention here that Ministry of Defence, Government of India issued Notification SRO 171 dated 12.07.1995 laying down the terms and conditions of the WTLO and vide letter dated 12.03.1997 which was notified as under: “No.5431/WTLO/DGNCC/PC/TCS10 MS(A)/7(C)/D(GS-VI) Government of India Ministry of Defence New Delhi, the 12th Mar 97 To The Director General National Cadet Corps Ramakrishnapuram New Delhi-110066 Subject: TERMS AND CONDITIONS OF SERVICE OF NCC WHOLE TIME LADY OFFICERS GRANTED PERMANENT COMMISSION UNDER SRO 171 DATED 12 JULY 1995 Sir, I am directed to refer to this Ministry's letter No.5431/DGNCC/PC/TCS/MS(B)/1130/A/D(GS-VI) dated 23rd May, 1980, prescribing the service conditions both for male as well as female NCC Whole Time Permanent Commission officers and SRO 171 dated 12 July 1995, and to state that the President is pleased to decide that NCC Whole Time Lady Officers granted NCC permanent commission on the recommendations of the screening board and approved by the Ministry of Defence in accordance with the SRO 171 dated 12 July 1995, will be governed separately by the terms and conditions of service, as laid down in Appendix 'A' to this letter.
2. These orders will take effect from the date of issue.
3. The provisions of Ministry's letter No. 5431/DGNCC/PC/TCS /MS(B)/1130/A/D(GS-VI) dated 23-05-1980 will not be applicable to NCC Whole Time Lady Officers granted permanent commission.
4. This issues with the concurrence of Ministry Defence (Finance) vide their ID No.548/GS/97 of 1997 Yours faithfully, Sd/- (Hukam Chand) Under Secretary to the Government of India Copy to:- The Controller General of Defence Accounts The Director General of Audit, Defence Services Deputy Director of Audit, Defence Services, Pune Ministry of Defence/D(GS-VI) Ministry of Finance (Defence), GS/AG (Pension) CDA (Offrs), Pune. All NCC Directorate & Training Establishments Copy signed in ink to: CDA (Offrs), Pune, CDA (Pension), Allahabad.”
15. The Appendix „A‟ brings out the following relevant conditions: “Appointment
2. Selected officers granted NCC permanent commission under SRO 171 dated 12th July, 1995 may be appointed anywhere in India to NCC Girls Units/NCC Group Headquarters/NCC Directorate/WOTS, Gwalior/DGNCC. x x x x Liability of Service
5. These officers will be liable to serve anywhere in India at NCC Girls Units/NCC Group Headquarters/NCC Directorate/WOTS, Gwalior/DGNCC or as may be directed from time to time by the DGNCC. Discipline
6. These officers will be governed by NCC Act 1948 and NCC Rules, 1949, as amended from time to time. x x x x x”
16. As per the aforesaid terms and conditions of service, although the DGNCC acts as the commanding officer with respect to the WTLO, however, learned counsel for the petitioner is right that DGNCC is not vested with the status of DA or AA in terms of Group- A employees. As per Appendix „A‟ attached to the NCC order dated December 1980, it is explicitly stipulated that, in disciplinary matters concerning the imposition of both major and minor penalties for Group-A employees, the Disciplinary Authority (DA) shall be the Ministry of Defence, and the Appellate Authority (AA) shall be the President.. S.No Group of the Central Govt. employee Penalty Disciplinary
1. „A‟ Minor & Major Min. of Defence President
2. „B‟ (a) Minor (b) Dir Gen NCC Min of Defence President President
3. „C‟ and „D‟ (a) Minor (b) Major Dir NCC/Comdt Trg Estt BIA in Dte Gen NCC Dir Gen NCC
17. At this juncture, it would be pertinent to re-produce the office Memorandum F. No. 11012/5/2016-Estt.A-III dated 02.08.2016, which goes as under:
18. The aforesaid Appendix „A‟ read vis-à-vis the memorandum dated 02.08.2016 leave no scope for doubt that the DGNCC cannot be classified as the DA. The DGNCC, as the commanding officer, is distinct from the Disciplinary Authority (DA) under Section 18 of the POSH Act. Moreover, the DGNCC's decision in the petitioner's case raises concerns about bias. This is because the DGNCC supervised the Internal Complaints Committee (ICC) and justified their own decisions in the appeal letter dated 10.04.2024. Furthermore, the petitioner has been denied a fair hearing, and their representation has not been considered by the DA. This omission is a concern, as the DA's role is critical in ensuring a fair and impartial process under the POSH Act. Therefore the impugned decision conveyed vide letter dated 10.04.2024 is non est in law.
19. In view of the foregoing discussion, this Court finds that the respondents have committed wilful and deliberate disobedience of the directions of this Court vide order dated 19.02.2024 passed in W.P.(C) No.2437/2024, and therefore, they are held guilty of committing contempt of the directions of this Court.
20. To purge themselves of contempt, the respondents are hereby directed to:
(i) Refer the petitioner's representation to the Disciplinary
(ii) Decide on the petitioner's representation after affording her an opportunity to be heard within three weeks from the date of this order.
21. In the event of non-compliance, the respondent/contemnor shall appear before this Court for a hearing on the quantum of sentence or punishment to be awarded in accordance with the law.
22. The contempt petition is disposed of accordingly.
23. A compliance report be filed on or before 01.02.2025.
DHARMESH SHARMA, J. DECEMBER 16, 2024