Rajendra Singh v. UOI and Ors.

1. The challenge in this writ petition is to the show cause notice dated June 13, 2007, report of the Complaint Committee dated February 09, 2007 and to the orders dated February 08, 2010 and August 12, 2010. Vide office order dated February 08, 2010, the Managing Director of the respondent No.2 organisation on a conclusion that the charge of sexual harassment having been proved by the Statutory Complaint Committee appointed by the respondent No.1, and the reply to the show cause notice submitted by the petitioner being not satisfactory, imposed a major penalty, thereby dismissing the petitioner notionally; whereas the order dated August 12, 2010 is an order communicating the decision of the Board of Directors in an appeal filed by the petitioner against the order 2016:DHC:22 dated February 08, 2010, whereby the Appellate Authority dismissed the appeal filed by the petitioner.

2. Some of the relevant facts are that on October 07, 2002 a female employee of the department lodged a complaint regarding sexual harassment against the petitioner. A FIR No. 450/2003 was registered against the petitioner in P.S Sarita Vihar, under Section 509/504 IPC on September 16, 2003. That apart, complaints by two more female employees and the same lady officer were also filed on August 28, 2003 against the petitioner for sexual harassment. In the month of November, 2003, a Complaint Committee comprising two lady officers of the rank of Joint Secretary and Under Secretary of the Department of Animal Husbandry, Dairying and Fisheries of the respondent No.1 recommended disciplinary action against the petitioner. On November 20, 2003 a charge-sheet for major penalty under Rule 14 of CCS (CCA) Pension Rules, 1965 was issued to the petitioner. A practising lady Advocate was appointed as an Enquiry Officer to conduct proceedings against the petitioner. The police authorities filed a charge-sheet against the petitioner on December 14, 2003 in FIR No.450/2003 under Section 504/509 IPC. On August 25, 2004 upon completion of the regular enquiry proceedings the Enquiry Officer submitted her report absolving the petitioner of the charges. On a show cause notice issued to the petitioner, the petitioner submitted his representation dated August 30,

2004. Finally an order dated November 08, 2004 was issued exonerating the petitioner of the charges of sexual harassment. In the meantime, on February 03, 2005 the Board of respondent federation was dissolved and an Administrator was appointed. On April 12, 2005 the Administrator ratified the order of exoneration of the petitioner. Accordingly, on June 17, 2005 the respondent No.1 i.e. the Department of Animal Husbandry, Dairying and Fisheries informed the three complainants about the exoneration of the petitioner. It is pleaded by the petitioner that on January 12, 2006 he made a representation reiterating his grievance of planned harassment against him. It is his case that a new Board of Directors close to Mr. B.K. Mishra- respondent No.3 was selected. On June 05, 2006 the newly elected Board passed an order restoring the position of Mr.B.K. Mishra-respondent No.3 by recalling the order of reversion. The respondent No.3 was appointed as Managing Director on August 29, 2006. Immediately thereafter on November 27, 2006 the petitioner received a notice dated November 21, 2006 whereby he was directed to appear before the Complaint Committee on November 27,

2006. In his reply dated December 04, 2006 the petitioner questioned the status of the Complaint Committee. The newly constituted Complaint Committee submitted its report against the petitioner afresh on February 09, 2007. On June 13, 2007 a show cause notice was issued to the petitioner to file his representation against the proposed penalty of dismissal from service. The petitioner filed W.P.(C) 6617/2007 challenging the legality of notice dated June 13, 2007. This Court in its hearing dated September 10, 2007 stayed the operation of the notice to show cause dated June 13, 2007. In the meanwhile, the learned Metropolitan Magistrate vide his order dated November 13, 2007 discharged the petitioner. This Court modified its order dated September 10, 2007 passed in W.P.(C) 6617/2007. A personal hearing was given to the petitioner by the respondent No.3 on June 17, 2009, who submitted his report to the Board. The respondent No.2 Board decided to dismiss the petitioner from services. On February 08, 2010 the respondent No.3 communicated the impugned decision of the respondent No.2 Board giving its approval to the order of dismissal. On February 11, 2010 the petitioner vide his representation sought to know, who would hear the appeal against the dismissal order dated February 08, 2010. The petitioner was informed to prefer appeal before the Board of Directorsrespondent No.2. The petitioner submitted his appeal to the respondent No.2 on March 17, 2010 against the order of dismissal dated February 08, 2010. The petitioner sent a reminder to the respondent No.3 to inform the status of the appeal dated March 17, 2010. The respondent No.3 communicated the impugned order of the Appellate Authority dated August 12, 2010.

3. It is the case of respondent Nos.[2] & 3 in their counter-affidavit that on December 30, 2004 the Central Registrar of the Cooperative Societies, Government of India issued a show cause notice under Section 123 of the Multi State Cooperative Societies Act, 2003 (‘Act’ in short), vide which the Board i.e. the respondent No.2 was called upon to show cause as to why the Board of Directors of the federation be not removed. One of the grounds for show cause notice was mismanagement, high handedness and moral turpitude related to Rajendra Singh i.e. the petitioner, who at that time was working as Assistant Director, In-Charge of Administration. Accordingly, the Board of Directors of the Federation was removed and Joint Commissioner (Fisheries) in the Department was appointed as the Administrator. The subject matter of the allegation against the petitioner in the show cause notice dated December 30, 2004 was that a complaint was received through National Commission for Women regarding sexual harassment of Ms. Rosy Duggal, Junior Technical Assistant, Ms. Jhuma Chakraborty, Sr. Technical Assistant and Ms. Uma Rani Pandey, Junior Assistant. The complaints were referred to the Complaint Committee during 2004. The case of the Complaint Committee was examined in its preliminary report. A detailed report on the matter was called from the then Managing Director of the respondent No.2 organisation before deciding further course of action. The Managing Director in his letter dated October 17, 2003 stated that a complaint has been received on October 07, 2002 which was enquired into by the Managing Director and explanation of the petitioner was called for. However, the Managing Director did not find any material in the complaint. The Managing Director had stated that the matter was discussed with Ms. Rosy Duggal on several occasions. During the meetings with the family members of Rosy Duggal, the then Managing Director asked the petitioner to mend his ways and the petitioner felt sorry for that. After this no unbecoming event has taken place, but the Managing Director could not explain why he asked the petitioner to mend his ways when he had not found substance in the complaint against him. In her complaint Ms. Rosy Duggal stated that she was in service for the last 18 years. The petitioner, Assistant Director took charge of the Administration Division in the year 1996 and since then he has been in the habit of teasing the lady workers. Since the computer is in his room, he calls them in his room while the computer has obscene pictures on it, with a loud music. While talking to them he was in the habit of touching their hands and shoulder. If complaint is made, he used to say that he being the In-Charge of the Administration, no harm can be done to him. Also once he rang up her husband to inform him that she does not have a good character. When any lady is sitting alone, while passing through that place he passes remarks. He is in the habit of ringing up in her house at odd times, which she came to know due to the I.D. Caller installed at her home. In the preliminary enquiry conducted by Ms. Radha Mani, Under Secretary, Administration, the complainants were heard. The petitioner was also examined. In his examination he was unable to refute the allegations and the charge of sexual harassment. The statement of then Managing Director was also recorded. In the meantime, the department initiated a departmental enquiry where no representative of the Government of India was taken as per Vishaka’s guidelines. The three lady employees in their complaints informed that the Enquiry Officer appointed by the then Managing Director is his friend and relative and hence need to be changed. The Managing Director being the head of the institution did not bother to look into the representation of the complainants. In the preliminary report, the Under Secretary Ms. Radha Mani while making a report made the following observations during the enquiry:- “FISHCOPFED has only three lady employees and all the three ladies complained that Shri Rajendra Singh, Assistant Director, has been harassing them and passing unparliamentary remarks. The computer with loud music and obscene photos are causing mental disturbance while they have to enter his room in connection with official duties. The problem and fear of sexual harassment and the presence of Shri Rajendra Singh, Assistant Director has created fear and mental disturbance in their official life and they are always in tension while performing their official duties. Since Shri Rajendra Singh himself is in the Administration of FISHCOPFED, any complaint against him goes unheard. The MD has not been taking any interest in the matter and has also not taken any corrective steps. In the absence of cooperation from the MD, it has not been possible for us to make any headway in the matter.”

4. The above report of the Committee on sexual harassment was sent to the Fisheries Division which is the Administrative and Disciplinary Authority of the respondent No.2 for initiating fresh departmental enquiry in the matter in accordance with the Supreme Court Judgment in Vishaka’s case. The Managing Director issued a memorandum dated November 20, 2003 and statement of charges framed against the petitioner and three articles of charge of mental harassment and thereby from the face of the memorandum of the article of charges dated November 20, 2003 it is absolutely clear that the Managing Director never desired to proceed with the matter taking into consideration the Vishaka’s guidelines. The enquiry was conducted by Ms. Sharmila Upadhayay in a very fast track manner without taking into consideration the relevant facts, evidences and circumstances on record and thereby the enquiry report was prepared. Moreover, the complainants challenged the authority of the Enquiry Officer and the manner in which the enquiry was conducted but the Enquiry Officer being adamant to give findings in favour of Rajendra Singh and she accordingly did that. No opportunity as such for deposition was given to Ms. Rosy Duggal and her name was deleted from the array of prosecution witnesses. Moreover, the husband of Ms. Rosy Duggal was not given opportunity to depose. The said enquiry report was prepared on August 25, 2004. The then Managing Director exonerated the petitioner of the charges. Ms. Rosy Duggal submitted a representation dated November 28, 2005 to the then Administrator against the abovementioned disciplinary proceedings indicating that the enquiry was manipulated by the petitioner. Ms. Rosy Duggal requested for re-opening of the enquiry to the Administrator. The then Managing Director of respondent No.2 organisation sought a report from the Assistant Director, Administration regarding the case of petitioner and after a thorough examination of the case the matter was referred to the Joint Secretary (Fisheries) with a request to forward the case to CVO for review and re-examination to provide justice to the complainants. A further request was made on November 28, 2005 requesting for re-opening of the enquiry. On July 06, 2006 one reminder was sent by the respondent No.1 asking information regarding prevention of sexual harassment of women at work place. In response thereto, letter dated July 17, 2006 was issued with the approval of the Competent Authority. On January 02, 2006 the Under Secretary to the Government of India stating therein that on the request of the disciplinary authority and with the approval of the Secretary, AHD&F to refer the complaints again to the Complaint Committee set up in the department for giving firm findings, which would form basis for taking any action including imposition of penalty against Rajendra Singh in accordance with CCS(CCA) Rules, which stated that the findings of the Complaint Committee pertaining to sexual harassment at work place should be considered as final. The Complaint Committee for enquiry into such complaints shall be deemed to be the enquiry authority appointed by the disciplinary authority for the purpose of the rules. The Member Secretary conducted the enquiry and from the prosecution side witness was examined. The abovesaid enquiry was conducted in free, fair and impartial manner consisting of four persons. On thorough enquiry, due deliberations and as per the rules and accordance with the Supreme Court judgment in Vishaka’s case the Committee found that the complaints of the complainants were genuine. The report was forwarded to the Managing Director who in compliance with the enquiry report issued a show cause notice dated June 13, 2007 to the petitioner calling upon him to submit the representation within 15 days from the receipt of the notice. The Managing Director submitted his report to the Board of Directors, which took a decision in the meeting held on August 11, 2009 to dismiss the petitioner from the service notionally keeping in view the punishment of dismissal was passed, which was challenged in W.P.(C) 6617/2007. The appeal was also considered by the Board of Directors in the meeting held on June 30, 2010, which was rejected by the Board of Directors noting that there is no substance in the appeal. It is also the case of the respondents that the Board of Directors reposed no confidence in the appellant and considered the retention of the petitioner undesirable and detrimental in the federation.

5. Mr.Sanjay Das, learned counsel appearing for the petitioner would submit that the impugned orders are illegal as the same have been passed against the petitioner when there was no master and servant relationship between him and the respondent No.2 federation in view of the earlier order of dismissal dated June 18, 2008. He would further submit that the impugned orders dated February 08, 2010 and August 12, 2010 are nonspeaking orders and are unsustainable in law as the same run contrary to settled principles of law laid down by the Supreme Court in the case reported as (1970) 1 SCC 764 Mahabir Prasad Santosh Kumar vs. State of U.P. According to him, the order dated August 12, 2010 is unsustainable in view of the fact that once the Board of Directors had ratified/approved the dismissal of the petitioner, the said authority cannot sit in appeal over the very same decision. The penalty order dated February 08, 2010 is unsustainable for the reason that the same has been decided/passed by respondent No.3, who had deposed against the petitioner before the Complaint Committee. In support of his contention, he has relied upon the judgment of the Supreme Court in the case reported as (1984) 2 SCC 578 Arjun Chaubey vs. Union of India & Ors.

6. He would also state that the earlier Committee constituted to look into the complaint filed by the complainants even assuming not in accordance with the Vishaka’s guidelines still a charge-sheet was issued to the petitioner which was enquired into by the Enquiry Officer, who had not found the charges proved. The respondents could not have opened the enquiry on the pretext that the Committee was not in terms of the Vishaka’s guidelines. The action which was taken earlier was justified in accordance with the instructions in place at that time. The Constitution of a fresh Committee and subsequent show cause notice resulting in the impugned orders is illegal.

7. Learned counsel for the petitioner would further submit that assuming for the sake of argument but not conceding that the second enquiry proceedings before the Complaint Committee was lawful, the punishment could not have been imposed without adhering to the procedures outlined under Rule-14 of the CCS(CCA) Rules, 1965. According to him, the order dated November 08, 2004 exonerating the petitioner pursuant to a full-fledged enquiry by the competent authority having attained finality and the same allegations could not have been the subject matter of another proceedings. The submission made on behalf of the petitioner find corroboration from the office note dated May 16, 2005, which reads as under:- “...... no weightage can be given to the complaint committee the enquiry was entrusted to the committee before the aforesaid amendment.” “Since neither of the Committees have categorically proved the charges against Shri Rajendra Singh, AD, and as no additional information or evidence is available to prove the charges, no further action can be taken in this regard.”

8. According to learned counsel for the petitioner, there are no provisions under the CCS (CCA) Rules, 1965 empowering the authorities to direct fresh proceedings against a delinquent on same set of allegations after his exoneration. He would rely upon the judgments reported as AIR 1971 SC 1447 K.R Deb vs. Collector of Central Excise, Shillong, 2007 (11) SCC 517 Kanailal Bera vs. UOI, (1996) 9 SCC 485 State Bank of Bikaner & Jaipur vs. Ajay Kumar Gulati and ILR 1980 Delhi 528 Prabhu Dayal & Ors. vs. MCD in support of his submissions.

9. Learned counsel for the petitioner would submit that the nonconsideration of the fall-out of the order dated November 13, 2007 passed by learned Metropolitan Magistrate, Patiala House Courts, in FIR No.450/2003 discharging the petitioner of the same charge. The impugned order dated February 08, 2010 is contrary to the order dated February 25, 2009 passed by this Court in W.P.(C) 6617/2007 which has directed the respondents to pass a speaking and reasoned order on the representation of the petitioner. The second complaint committee was constituted and the entire case was reopened for reinvestigation at the back of the petitioner as no prior intimation was given to the petitioner about such a decision. The second complaint committee lacks both power and jurisdiction to conduct the proceedings afresh. According to him, the impugned orders have been passed following the instructions/guidelines of the Government of India as amended in the year 2004. All amendments are prospective in nature and cannot have any application to the incidents occurring prior to such amendment considering the fact that the incident alleged against the petitioner pertains to the period prior to the year 2004. The respondent No.3 could not have acted as the disciplinary authority of the petitioner in view of the challenge to his appointment as the Managing Director by the petitioner pending consideration of this Court in W.P.(C) 5594/2007. He also states that the petitioner having attained the age of superannuation and the service not being pensionable, even if the Court comes to a conclusion that the order is bad, still no enquiry can be proceeded after attaining the age of retirement. The petitioner is entitled to the retiral benefits on the date of his superannuation. In this regard, he would rely upon the following judgments. (a) Dev Prakash Tewari vs. U.P. Cooperative Institutional Service Board, Lucknow & Ors., Civil Appeal Nos.5848-49/2014, decided on June 30, 2014. (b) State of Maharashtra vs. Vijay Kr. Aggarwal & Anr., Civil Appeal Nos.1020-1021/2014 decided on January 29, 2014.

(c) Girijan Co-op. Corporation Ltd., A.P vs.

(d) Dr. Kuntesh Gupta vs. Management of Hindu Kanya

Mahavidyalaya,, Sitapur (U.P.) & Ors. (1987) 4 SCC 525. (e) S.N. Mukherjee vs. Union of India (1990) 4 SCC 594

10. On the other hand, Mr.Naushad Ahmed Khan, learned counsel for the respondents reiterate the stand taken by the respondents in their counter-affidavit. He would further state that the constitution of a second committee was justified as the earlier committee was not in terms of Vishaka’s guidelines. According to him, the Vishaka’s guidelines were required to be followed mandatorily. The mistake which had occurred earlier has been rectified by the competent authority by constituting a committee in accordance with Vishaka’s guidelines based on the complaints given by the three lady employees. He states that the charges against the petitioner are of very serious nature and could not have been overlooked by following a faulty procedure. He would justify the order of the dismissal in view of the allegations against the petitioner.