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HIGH COURT OF DELHI
Date of Decision: 20th July, 2023
SURENDER SINGH ..... Petitioner
Through: Mr. Ankur Chhibber, Advocate.
Through: Ms. Pratima N. Lakra, CGSC with Ms. Vanya, Advocate.
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
JUDGMENT
1. The respondent has filed an application under Section 114 of Code of Civil Procedure for review of judgment dated 17.05.2023. The petitioner had filed the writ petition with the following prayers: “a.) Quash order dated 21.10.2022 which constituted the Internal Complaints Committee; b). Quash order dated 03.11.2022 rejecting the representation of petitioner and suspension order dated 16.11.2022 c.) Direct respondent to conduct the inquiry as per relevant provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act & Central Civil Services (Classification, Control and Appeal) Rules
2. The petition was disposed of by this court vide judgment dated Digitally 17.05.2023. The operative paragraphs of the Order reads as under:-
3. It is submitted in the Review Petition that the court had raised a question that if the complaint is being investigated by a specifically constituted Internal Complaints Committee (hereinafter referred to as “ICC”), then why was the Charge Sheet served upon the petitioner by the Disciplinary Authority.
4. It is submitted that Rule 14 of (CCS CCA Rule, 1965) provides that the Complaints Committee established in each Ministry, Department and Office, for enquiring into the complaints of sexual harassment shall be deemed to be the Enquiring Authority for the purposes of these Rules and the Complaints Committee shall hold the enquiry so far as practicable, in accordance with the procedure laid down in the Rules. Therefore, even before the enactment of POSH Act, 2013 provisions were already available for conducting enquiry by the Complaint Committee in the Rule 14 of the CCS (CCA) Rules, 1965. Digitally
5. Section 11 of the POSH Act, 2013 itself provides that the enquiry has to be conducted in accordance with Service Rules. Rule 14 of the CCS (CCA) Rules contemplates a two-tier enquiry viz., the First-Stage Fact-Finding Enquiry to ascertain the truth of the allegations made which is followed by a Second Stage Enquiry by Department in which Charge Sheet is filed and a Departmental Enquiry is conducted.
6. The petitioner has claimed that after the enactment of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and framing of Rules thereunder, the Department of Personnel and Training, Government of India vide OM dated 16.07.2015 has incorporated this procedure of conducting a two stage enquiry. i.e. the first stage and the second stage.
7. The petitioner has submitted that in the present case as well, on receipt of the sexual harassment complaint dated 18.10.2022, DG CRPF referred it to ICC in accordance with Section 4 of the POSH Act, 2013. A Fact-Finding Enquiry (which is 1st stage enquiry envisaged under CCS (CCA) Rules) had been conducted in which a prima facie case was made out. Thereafter, the Department, after the approval of the Disciplinary Authority had served Memorandum of Charges dated 02.02.2023 which is the Second-Stage Enquiry in accordance with Section 11 of the POSH Act read with Rule 14 of the CCS (CCA) Rules, 1965.
8. It is argued that the sole object of the Fact-Finding Committee is to ascertain the truth before proceeding further which is for the benefit of the petitioner. At this stage of Fact-Finding Enquiry, the petitioner is not entitled to cross-examine the witnesses examined by the Department.
9. Therefore, the procedure followed was as prescribed under CCS Digitally (CCA) Rules, 1965 and applicable to the petitioner in terms of amended Prevention of Sexual Harassment of Women at Workplace Act, 2013 (hereinafter referred to as „POSH Act, 2013‟) and the Rules framed thereunder vide OM dated 16.07.2015. The impugned Order may therefore, be reviewed and the Order dated 21.10.2022, constituting ICC be restored along with the Preliminary Enquiry, in the interest of justice.
10. Submissions heard.
11. The Central Civil Services (Classification, Control and Appeal) Rules have been enacted by the President of India in exercise of power conferred by the proviso under Article 309 and Clause (5) of Article 148 of the Constitution of India. Part-VI of CCS (CCA) Rules, 1965 contains the procedure for imposing the penalties. Rule 14 of CCS (CCA) Rules stipulates the procedure for imposing major penalties which reads as under: - “Rule 14 – Procedure for imposing major penalties (1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and rule 15, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act. (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 Digitally 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.”
12. In the judgment of Vishaka & Ors. vs State of Rajasthan, (1997) 6 SCC 241, the Apex court, while exercising the powers vested under Article 32 of the Constitution to enforce the fundamental rights to „Gender Equality and Right to live with Dignity of women‟ bestowed under Article 14, 15, 19(G) & 21 of the Constitution of India and noting the absence of statute for effective enforcement of these basic rights of women especially sexual harassment at workplace, laid down a set of guidelines and norms with the direction that they shall be strictly adhered to and shall be binding and enforceable in law till such time the vacuum was filled and a legislation was enacted to occupy the field.
13. The Vishaka decision was followed by Medha Kotwal Lele & Ors. vs Union of India & Ors. (2013) 1 SCC 297 where it was explained that the Internal Complaint Committees as envisaged by the Supreme Court in the Vishaka judgment, shall be deemed to be the Enquiring Authority for the purposes of CCS Conduct Rules, 1964 and the report of the Internal Complaint Committee shall be deemed to be an Enquiry report on which the action may be taken by the Disciplinary Authority in accordance with Rules.
14. After the passage of about 15 years from the date of verdict in Vishaka’s case, POSH Act, 2013 was legislated on 22.04.2013 which was notified on 09.12.2013. The Act laid down a comprehensive mechanism for Digitally constitution of Internal Complaint Committee (ICC), Local Committee and Internal Committees; the manner of conducting the enquiry into the complaint received, the duties and powers of the employer and District Officer and penalties for non-compliance of the provisions of the Act.
15. Section 11 of the POSH Act, 2013 provides that an enquiry into sexual harassment complaint shall be made in accordance with the provisions of the Service Rules applicable to the respondent and where no such exists, it shall be in the manner prescribed.
16. Rule 7 of the POSH Act, 2013 framed in exercise of the power conferred by Section 29 of the said Act, delineates the procedure to be followed and the manner in which to conduct the enquiry as provided under Section 11 of the POSH Act, 2013, which reads as under: “7. Manner of inquiry into complaint.- (1) Subject to the provisions of section 11, at the time of filing the complaint, the complainant shall submit to the Complaints Committee, six copies of the complaint along with supporting documents and the names and addresses of the witnesses. (2) On receipt of the complaint, the Complaints Committee shall send one of the copies received from the aggrieved woman under sub-rule (1) to the respondent within a period of seven working days. (3) The respondent shall file his reply to the complaint along with his list of documents, and names and addresses of witnesses, within a period not exceeding ten working days from the date of receipt of the documents specified under sub-rule (1). (4) The Complaints Committee shall make inquiry into the complaint in accordance with the principles of natural justice. (5) The Complaints Committee shall have the right to terminate the inquiry proceedings or to give an exparte Digitally decision on the complaint, if the complainant or respondent fails, without sufficient cause, to present herself or himself for three consecutive hearings convened by the Chairperson or Presiding Officer, as the case may be: Provided that such termination or ex-parte order may not be passed without giving a notice in writing, fifteen days in advance, to the party concerned. (6) The parties shall not be allowed to bring in any legal practitioner to represent them in their case at any stage of the proceedings before the Complaints Committee. (7) In conducting the inquiry, a minimum of three Members of the Complaints Committee including the Presiding Officer or the Chairperson, as the case may be, shall be present.”
17. The interplay between the Service Rules, the POSH Act and Rules there under, came up on consideration in the recent Supreme Court judgment of Aureliano Fernandes vs State Of Goa 2023 SCC OnLine SC 621 decided on 12th May, 2023 wherein a similar situation had arisen, where the ICC guided by the Rule 11 of the POSH Rules conducted the Enquiry instead of serving the Charge-sheet as contemplated under Rule 14 of CCS (CCA) Rules, 1965. The pertinent question that arose before the Hon‟ble Bench was whether the Enquiry conducted by the ICC stands vitiated. After the perusal of the relevant Rules and POSH Act, 2013, it was held as under:- “Thus, it can be seen that the journey from Vishaka’s Case (supra) that acted as a springboard and sowed the seeds of future legislation by structuring Guidelines to deal with the cases of sexual harassment, blossomed into a comprehensive legislation with enactment of the POSH Act and Rules. At the same time, however, women centric the Guidelines and the Act may have been, they both recognize the fact that any inquiry into a complaint of sexual harassment at the workplace must be in accordance with the relevant rules and in line with the principles of natural Digitally justice. The cardinal principle required to be borne in mind is that the person accused of misconduct must be informed of the case, must be supplied the evidence in support thereof and be given a reasonable opportunity to present his version before any adverse decision is taken. Similarly, the concerned employer is also expected to act fairly and adopt a procedure that is just, fair and reasonable. The whole purpose is to breathe reasonableness into the procedural regime. But, the test of reasonableness cannot be abstract. It has to be pragmatic and grounded in the realities of the facts and circumstances of a case. When conducting an inquiry, it is the duty of the Inquiring Authority to proceed in a manner that is visibly free from the taint of arbitrariness, unreasonableness or unfairness. An inquiry that can culminate into imposition of a major penalty like termination of service of an employee must doubly conform to a just, fair and reasonable procedure. Any displacement of the principles of natural justice can only be in exceptional circumstances, as contemplated in the proviso to Article 311(2) of the Constitution of India and not otherwise. Wherever the rules are silent, principles of natural justice must be read into them and a hearing be afforded to the person who is proposed to be punished with a major penalty.”
18. The four predominant purposes sought to be achieved by reading the principles of natural justice into law and into the conduct of judicial and administrative proceedings to achieve the underlying object of securing fairness have been concisely stated by the Apex Court in the case of Madhyamam Broadcasting Limited Vs. Union of India 2023 SCC OnLine SC 366 decided on 05.04.2023 which are: (i) an assurance of a fair outcome by following the procedural Rules; (ii) an assurance of equality in the proceedings; (iii) legitimacy of the decision and decision- making authority thereby preserving the integrity of the system and finally, and (iv) Digitally preserving the dignity of individuals where citizens are treated with respect and the dignity they deserve in a society governed by the Rule of Law.
19. Coming to the fact in hand, according to the respondent, in consonance with the CCS (CCA) Rules, 1965 it had held a Fact-Finding Enquiry and had thereafter sought to serve the Memorandum of Charges upon the respondent. However, as discussed above, fundamentally under Rule 11 of the POSH Rules, the complaint itself becomes the Chargesheet, copy of which is served upon the respondent to respond to the same. The list of witnesses is also expected to be filed by both the parties. The evidence necessarily has to be confined to the averments made in the complaint and therefore, it cannot be said that while responding to the complaint, respondent is not aware of the precise allegations against him or that a separate chargesheet is necessarily required. The proceedings envisaged under POSH Rule 11 is that which is followed in civil cases. The principle of natural justice is ingrained in the procedure as provided in Rule 11.
20. Furthermore, as held in the case of Aureliano Fernandes (supra), the ICC is not bound to strictly follow the step-by-step procedure as has been stipulated in Proviso 2 of Rule 14(2) of CCS (CCA) Rules, which permits the Committee to inquire into the sexual harassment complaint ‘as far as practicable in accordance with the procedure laid down in the Rules’. The intent and purpose of the proviso is that the procedure required to be adopted for conducting an enquiry into the complaint of sexual harassment that can lead to imposition of major penalty under the Rules, not only be fair, impartial and aligned, particularly to ensure the adherence to the principles of natural justice during an enquiry, but also that the spirit behind the “due process” should never be suppressed or ignored. Even in the Digitally absence of a statute or the Rules prior to 2013, the principles of natural justice are the very essence of any decision-making process by a judicial authority. By inserting the Proviso to Rule 14(2), a balance between the rights of the victim of sexual harassment and all the delinquent employee as far as practicable, has been calibrated. However, the “fairness in the procedure”, at the same time cannot be given a go by in the interest of both the parties.
21. The facts in the present case are pari materia to the case of the Aureliano Fernandes (supra) wherein the respondents have conducted a Fact-Finding Enquiry which was essentially not required while enquiring into the sexual harassment complaint. The Memorandum of Charge is also not required to be framed and served by the Disciplinary Authority. Rather, the issues may be crystallized by the ICC before commencing the evidence. Since the ICC is yet to commence its proceedings and record the evidence, it can frame the issues on its own and does not require Memorandum of Charges from the Department for further enquiry into the complaint. Therefore, there is no infirmity in the impugned order dated 17.05.2023 except the correction that the Order dated 21.10.2022 constituting the Internal Complaint Committee is not set aside but the fact finding report and the charge-sheet dated 02.02.2023 is hereby set aside. The order dated 17.05.2023 may be read accordingly:- “Accordingly, we hereby dispose of present petition by setting aside the Fact-finding Inquiry Report dated 18.11.2022 and Charge-sheet dated 02.02.2023 and giving liberty that ICC shall start a fresh inquiry on the complaint against the petitioner, as per law by giving him opportunity to participate in the said proceedings” Digitally
22. No further interference is warranted. Review Petition is accordingly disposed of.
(SURESH KUMAR KAIT) JUDGE (NEENA BANSAL KRISHNA)
JUDGE JULY 20, 2023 Digitally