Saurabh Kumar Mallick v. Comptroller Of Auditor General Of India

Shri Shanker Raju: Constitution Bench of the Apex Court in M. Nagraj v. Union of India, (2006) 8 SCC 212 held the following:- The expression life in Article 21 of the Indian Constitution does not connote merely physical or animal existence. The right to life includes right to live with human dignity. It is the duty of the State not only to protect human dignity but to facilitate it by taking positive steps in that direction. No exact definition of human dignity exists. It refers to the intrinsic value of every human being, which is to be respected. It cannot be taken away. It cannot be given. It simply is. Every human being has dignity by virtue of his existence.

2. Applicant, a Director in Indian Audit & Accounts Service, by virtue of this OA, has impugned respondents order dated 14.7.2007 whereby the complaint made by one Ms. Geetali Tare has been treated as a charge sheet and the applicant has been directed to give his defence. Also assailed is an order of suspension dated 3.5.2007 whereby investigation in a criminal case, applicant has been suspended under Rule 10 (1) of CCS (CCA) Rules, 1965 (hereinafter referred to Rules 1965). Lastly, an order passed by the respondents on 12.7.2007 has been impugned where the request to keep the inquiry in abeyance pending trial on the identical issue has been turned down.

3. A brief factual matrix of the case transpires that applicant on 16.1.2007 when posted as Director (Administration), National Academy of Audit & Account (NAAA), a senior member, namely, Ms. Geetali Tare, who was posted as Director (Training), attended together an official dinner on 30.3.2007, got registered FIR No.75 dated 31.3.2007 under Sections 451/354 against the applicant on the ground that while on return back from the dinner, applicant committed the offence of outraging her modesty by trespassing in her room in the Mess. As a result thereof, applicant was placed under suspension on the complaint of Ms. Geetali Tare. Comptroller of Auditor General nominated a committee on 5.4.2007 to recommend whether prima facie case for sexual harassment has been made out or not. Applicant was also transferred to Thiruvananthpuram. A representation made by the applicant when criminal matter was on, charge sheet filed in the competent court of criminal jurisdiction to keep the inquiry in abeyance till the decision of the criminal court. The aforesaid representation was turned down. Accordingly, an order passed on 14.7.2007 treated the complaint made by Ms. Geetali Tale as charge sheet, gives rise to the present OA.

4. Shri A.K. Behera, learned counsel for applicant contended that the complaint is fabricated against the applicant as Ms. Geetali Tale is a senior officer due to a controversy between the applicant and the complainant on administrative issue relating to misuse of Government funds, misusing her position false allegations have been fabricated against the applicant. As the applicant was served upon the complaint, he responded to it whereby a Committee has been formed, which recommended a prima facie case of alleged sexual harassment. It is stated that a regular memorandum as a definite charge sheet as per Rules, 1965 has not been issued.

5. In the above backdrop, learned counsel states that the guidelines laid down by the Apex Court for want of legislation, insofar as sexual harassment of woman at work place is concerned, which is to be treated as a precedent under Article 141 of Constitution of India, the condition precedent is that the alleged harassment as per the guidelines formulated and adopted by the DOPT, the harassment should have been at workplace. Accordingly, it is stated that as per the website (http://www.naaa.gov.in) under the sub-page Hostel, the hostel is used for the residence of the probationers and provides residential accommodation to visiting faculty in-service course and participants and visitors and Mess is considered not just a place of eating but also a place for social interaction. Accordingly, it is stated that Mess is a guesthouse where guests are charged rental and in case of permanent faculty members of NAAA given rent free rooms in lieu of the entitled rent free accommodation. It is also stated that while residing in one of the hostels members of the Academy with their family are not entitled to HRA and being a residential place where no official activities are carried out, the place does not come within the ambit of workplace, which is as per the Oxford Dictionary is defined as the office, factory, etc. where people work.

6. Learned counsel for applicant would also contend that as per clause 2 of the guidelines, a sexual harassment would be when a women employee has reasonable grounds to believe that her objection not to accede to sexually determined behaviour in connection with her employment, would put her in some disadvantage. Accordingly, it is stated that complainant being senior to the applicant the aforesaid situation has not arisen. As such, the alleged behaviour, though denied, cannot be a subject matter of the complaint mechanism as per the dicta of Vishaka & others v. State of Rajasthan & others, (1997) 6 SCC 241. However, in such an event, the alleged misconduct of the applicant should have to be proceeded as an ordinary misconduct under Rule 14 of the Rules 1965, for which a different methodology has to be adopted in the procedure.

7. Learned counsel has relied upon a decision of High Court of Delhi in Sandeep Khurana v. Delhi Transco Limited & others (Writ Petition (C) No.7849/2006) decided on 17.11.2006 to contend that laid down procedure when not followed as per Rule 14 of the Rules 1965, vitiates the punishment and the inquiry as well.

8. Learned counsel would also contend that the respondents in their reply as to the allegations leveled in the criminal case when admitted to be the allegations of grave nature involving important questions of act and law, the parallel proceedings against the applicant has to be stayed in the light of the decision of the Apex Court in Hindustan Petroleum Corporation Limited v. Sarvesh Berry, (2005) 10 SCC 471. He also relies upon DOPT OM dated 1.8.2007 to substantiate his plea.

9. Learned counsel would further contend that since the charge sheet has been filed, the defence of the applicant when disclosed earlier in the inquiry shall certainly prejudice his right on disclosure of defence in the criminal trial.

10. Shri Behera, learned counsel states that as per paragraphs 11 & 12 of Vishakas case (supra) for any other misconduct as per Vishakas guidelines for a misconduct as defined in Service Rules, appropriate disciplinary action has to be resorted to.

11. Learned counsel has invoked Article 311 of the Constitution to contend that before any punishment is imposed upon a concerned, due process of law as per the statutory rules is to be followed.

12. On the other hand, Shri Rajiv Shakdher, learned senior counsel (Shri Ashok Panigrahi, Advocate, with him) for respondents vehemently opposed the contentions. It is stated that Mess is a part and parcel of the Academy complex and is not a residential place. It is stated that Mess is contiguous to the Academy and is a part of the workplace. In such view of the matter, it is stated that complaint mechanism in view of Vishakas case (supra) has been attracted and as the applicant has been complained of, harassment to the woman employee, on completion of the inquiry, necessary action shall be taken against him.

13. It is stated that the rigor of Rule 14 of the Rules 1965, which has been directed to be followed by the High Court in a Single Bench in Sandeep Khuranas case (supra), has already been challenged before a Division Bench of the High Court in LPA.

14. Learned counsel would contend that a reasonable opportunity in consonance with the principles of natural justice based on the principle of audi alteram partem would be extended to the applicant during the course of inquiry, which is deemed as per DOPT OMs to be initiated on a complaint of the victim treated as charge-sheet.

15. As regards parallel proceedings, learned counsel has relied upon the decision of the Apex Court in Sarvesh Berrys case (supra) to contend that it is not a ritual to stay disciplinary proceedings initiated parallel with the criminal trial, as the condition precedent that nature of the charge in criminal case is grave involving important questions of fact and law are conspicuously missing from the present case. The criminal proceedings are initiated for a crime where for an offence the accused is dealt suitably but the inquiry where standard of proof is different is on preponderance of probability.

16. Learned senior counsel contends that in a disciplinary proceeding Government may not be able to prove the ingredient of Sections 354 and 451 of IPC but independently of complaint and another material, the misconduct attributable to the applicant of his unbecoming of a government servant and his indulgence in an alleged act of sexually harassing a woman employee at workplace, has to be probed into and as per the guidelines in Vishakas case (supra) a binding precedent under Article 141 of Constitution. It is further stated that the draft bill, which is now being processed, includes within the definition of workplace a residential place as well.

17. Learned senior relies upon plethora of decisions, including the decision of Apex Court in Union of India & others v. Upendra Kumar, (1994) 3 SCC 357, Deputy Inspector General of Police v. K.S. Swaminathan, (1996) 11 SCC 498 and Chairman-cum-M.D., T.N.C.S. Corporation Limited v. K. Meerabai, (2006) 2 SCC 255 to contend that in a judicial review the Courts are precluded from interfering in a disciplinary proceeding at an interlocutory stage and when the exceptions are not attracted, i.e., the charge sheet is neither contrary to law nor is there a case of no misconduct, he prays for dismissal of the OA.

18. In the rejoinder, contentions taken by the applicant in OA are reiterated.

19. We have carefully considered the rival contentions of the parties and perused the records.

20. Modesty of women in India is considered to be like a jewel. It has not only to be be respected but protected too. Our mother law Constitution of India in its preamble secures social justice to all the citizens. Article 15 of the Constitution of India prohibits any discrimination against any citizen on the ground of sex. Fundamental duties contained in Article 51-A of the Constitution permits harmony and spirit of brotherhood common in all the people of India and to renounce practice for dignity of the women. Right to freedom contained in Article 19 (1) (g) protects the citizen to practice any profession and to carry any occupation. Article 21 of the Constitution protects after employment right to work as a fundamental right in the light of decision of the Apex Court in Air India Statutory Corporation v. United Labour Union, (1997) 9 SCC 377. Moreover, Article 21 of the Constitution when protects right to life it also equally protects as a fundamental right to live with dignity. In case of working women, the fundamental right to carry on occupation or trade requires condition precedent of a safe and secure working environment, which has to be protected through appropriate legislation and a mechanism to ensure that sexual harassment of women workers is eradicated and shall be dealt with a firm hand. Though for want of a specific legislation to protect any sort of sexual harassment of working women at their working place, yet the international conventions and norms are binding in the light of Articles 51 and 253 of the Constitution of India. The Apex Court in Peoples Union for Civil Liberties v. Union of India, (1997) 3 SCC 433, in a three Judge Bench, ruled that provisions of convention, which are ratified by the Government of India, are binding.

21. An unfortunate incident where a social worker has been ganged rape in Rajasthan, a writ petition filed for enforcement of fundamental rights of working women under Articles 14, 19 and 21was a subject matter before the Apex Court in Vishakas case (supra) where a three Judge Bench, though in the matter of gender equality defines it to be an inclusive of protection of working women from sexual harassment and right to work with dignity. Fourth World Conference on Women at Beijing from 4  15 September 1995 passed a Resolution defined the meaning of sexual harassment as follows:- 120. The absence of adequate gender-disaggregated data and statistics on the incidence of violence makes the elaboration of programmes and monitoring of changes difficult. Lack of or inadequate documentation and research on domestic violence, sexual harassment and violence against women and girls in private and in public, including the workplace, impede efforts to design specific intervention strategies. Experience in a number of countries shows that women and men can be mobilized to overcome violence in all its forms and that effective public measures can be taken to address both the causes and the consequences of violence. Mens groups mobilizing against gender violence are allies for change.

22. In the aforesaid Conference, Government has been obligated to refrain any sort of violence against women and a diligent exercise to prevent it as per the legislation and punished act of violence against women irrespective of the violence committed in a workplace owned by the Government but private institutes as well. Article 11 in general recommendation of 2nd Session of International Conference to eliminate discrimination against women emphasized on equality in employment and its impairment on gender, specific violence on sexual harassment in the workplace has to be curbed.

23. Taking cognizance of all these Conferences and in the wake of absence of enacted law to provide for effective enforcement of basic human right of gender equality and protection against sexual harassment, in exercise of Article 32 of the Constitution of India, certain guidelines have been formulated, which till the legislation comes, have been treated as binding precedent under Article 141 of the Constitution. These guidelines have been reproduced as below:- 17. The guidelines and norms pre-scribed herein are as under:- Having regard to the definition of 'human rights' in S. 2(d) of the Protection of Human Rights Act, 1993, Taking note of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time. It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women:

1. Duty of the Employer or other responsible persons in work places and other institutions: It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.

2. Definition : For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as :

a) physical contact and advances;

b) a demand or request for sexual favours;

c) sexually coloured remarks;

d) showing pornography;

e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature. Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim's employment or work whether she is drawing salary, or honorarium or voluntary, whether in Government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.

3. Preventive Steps : All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps: (a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways. (b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender. (c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946. (d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

4. Criminal Proceedings : Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

5. Disciplinary Action : Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

6. Complaint Mechanism : Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

7. Complaints Committee : The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

8. Workers' Initiative : Employees should be allowed to raise issues of sexual harassment at workers' meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.

9. Awareness : Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.

10. Third Party Harassment : Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.

12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

18. Accordingly, we direct that the above guidelines and norms would be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. These Writ Petitions are disposed of, accordingly.

24. The above guidelines have been incorporated by the Government on amendment by insertion of misconduct of prohibition of sexual harassment of working women in Rule 3 (c) of CCS (Conduct) Rules, 1964 (hereinafter referred to Rules 1964) with G.I., DOPT OM No.11013/10/97-Estt.A dated 13.2.1998 and also vide G.I., DOPT OM of even number dated 13.7.1999. As a result thereof, the complaint mechanism was formulated and in the light of DOPT OM of 4.8.2005, an amendment to sub-rule 2 to Rule 14 of Rules 1965 vide OM dated 10.7.2004 in the light of decision of the Apex Court in Medha Kotwal Lele v. Union of India (WPs 173-177 of 1999) decided on 26.4.2004, the report of the complaints committee as per the directions in Vishakas case (supra) has been deemed to be a final report under CCA (CCS) Rules 1965 on which disciplinary authority has jurisdiction to act upon. The complaint of the victim has to be treated as a charge sheet, though DOPT earlier vide OM dated 13.12.2002 in compliance of the directions in Vishakas case (supra) treated finding of the complaint committee as a preliminary inquiry report.

25. Applicant in the present case has contended that the alleged incident has taken place in a Mess where the applicant and Ms. Geetali Tare were residing is not a workplace. As such, the complaint mechanism adopted by the respondents treating the complaint as charge sheet, applicant has been deprived of a reasonable opportunity to effectively defend the charges in accordance with the laid down procedure, as due process of law, as envisaged under Article 311 (2) of the Constitution. The contention that procedure laid down for holding a disciplinary proceeding for a misconduct under Rule 14 of Rules 1965 has to be adopted. Reliance on a decision of the Single Bench in Sandeep Khuranas case (supra) is the gravamen of the submission.

26. As regards workplace, we do not find any definition of workplace either in the Rules 1964 or in the decision of Apex Court in Vishakas case (supra) as well as pursuant directions issued by the Government of India. In such an event, as an external aid, reference to the dictionaries to find out common parlance meaning is permissible as held by a three Judge Bench of the Apex Court in Union of India & others v. Harjeet Singh Sandhu, (2001) 5 SCC 593. However, while doing so, we must not forget that though it is permissible to refer to the dictionaries to find out the general sense in common parlance but selecting one out of the various words, the context and the meaning of work and expression used in the Act must have to take colour from that context in which it appears and should not be made otiose.

27. As per Blacks Law Dictionary (Fifth Edition), place of employment is defined as place where active work either temporary or permanent is being conducted in connection of a business for private or where any person is directly or indirectly employed by another. Chambers 20th Dictionary defines workplace as an office, factory or where one works. As per Oxford English Dictionary (10th Edition Revised) workplace is defined as a place where people work.

28. Having regard to the above definition, as an external aid, its interpretation has to be done in such a manner that the law made would have applicability even to a myriad situation, which is likely to arise as per the decision in a Constitution Bench in K. Prabhakaran, Ramesh Singh Dalal v. P. Jayarajan, Nafe Singh, (2005) 1 SCC 754.

29. Though it is trite that a decision of the Apex Court cannot be interpreted like a statute and what is to be discerned from it is only a ratio decidendi. However, deeming as a precedent under Article 141 of the Constitution in Vishakas case (supra), workplace, though not defined but the aim and object of formulation of these guidelines would clearly indicate that for want of a proper legislation and as regards to the international conventions, which have been ratified by the Government of India, right to live with dignity and realization of gender equality with an underlining object to prevent sexual harassment of working women in all workplaces, the vacuum has been filled up by these instructions. A definition of workplace should not have to be narrowed down and constricted in its applicability and to be interpreted for achievement of the object sought to be achieved, i.e., which is to protect working women from sexual harassment. Apex Courts obiter dicta has a binding effect on all the subordinate Courts, the sexual harassment of working women on all workplaces is with a purpose that by sexual harassment no reasonable apprehension should be borne in the mind of the victim in relation to victims employment or work. An employment and work when connected with a conjunction or gives it a wider scope and has to be liberally construed for achieving the object, i.e., to prevent sexual harassment of working women. Though we find that taking a myriad situation, the legislation now being under the process of giving a legal shape and to the definition of working place by inclusion of residence within its ambit as per Vishakas case (supra).

30. Though we have our own doubt as to the definition of residence but the proximity from the place of work and the control of the management over such residence where working woman is residing, is relevant and determining factor. A residence has to be an extension or a contiguous part of the working place to come within the ambit of workplace any incident of sexual harassment would ipso facto brings it within the definition as if the misconduct of sexual harassment has taken place in the workplace. Though when sexual harassment, i.e., outraging the modesty of woman by trespassing her room in the Mess, is made a punishable offence under Sections 452/354 of IPC and other sexually related act, maybe, a misconduct of unbecoming of a government servant, as the government servant has to maintain morality, i.e., not to have depravity of character even in private life, yet there is a separate mechanism to subject this misconduct in a disciplinary proceeding under Rule 14 of Rules 1965 and also for an offence in a criminal trial. The definition of workplace cannot be generalized to include all residences within the meaning and ambit of workplace, as it would lead to an absurdity and also an anomalous situation, which maybe chaotic due to the fact that sometimes an employee resides in his own arranged accommodation far from the workplace. Another instance is of Government pool accommodation away from the workplace. In such an event, any sexual harassment of working women would not come within the ambit of a workplace.

31. However, each incident of sexual harassment in the context of workplace has to be considered in its facts and circumstances. The test of a workplace is that the place where sexual harassment has been alleged is a place in the proximity of working activity and under immediate control of the employer, relating to which affairs have been managed by the Government.

32. No doubt, a government servant remains a public servant even after the working hours, yet any act done, which may amount to misconduct in his private life, cannot be said to be a conduct or even misconduct in discharge of performance of official duties. Accordingly, in the instant case, as per the complaint, Ms. Geetali Tare as well as the applicant have been functioning as Directors in the Academy, which houses in the close proximity. Glen officers Mess, which as per the information on website, defines Glen as a hostel used for probationers, which is being used by the visiting faculty in-service course and participants and visitors and this Mess is considered not just a place of eating but also a place for social interaction where officers meet for formal and informal dinners and get-togethers. House rent allowance is not given to those who stay in the hostels.

33. From the aforesaid, we cannot take a view that an exclusive residential accommodation, Glen hostel or Mess would not come within the ambit of a workplace. In order to be a workplace, it is not necessarily a place where actual working takes place. Any extension of the place of working or any institution when it is either a hostel or a Mess where employer has control of management, like in the case of Mess, which is allowed for accommodation of Academy officers when there are no allotted official accommodation may be treated as part of their residence but in its wider connotation, a part of the Academy maybe an extension of it. A government servant, who is residing in the Mess, is residing out of and in the course of employment, the Apex Court has an occasion to interpret the employment injury arising out of in-course employment in Regional Director, ESI Corporation & another v. Francis De Costa & another, 1994 SCC (L&S) 195 by holding as follows:- (6) Moreover, even in the realm of interpretation of Statutes, Rule of Law is a dynamic concept of expansion and fulfilment for which the interpretation would be so given as to subserve the social and economic justice envisioned in the Constitution. Legislation is a conscious attempt, as a social direction, in the process of change. The fusion between the law and social change would be effected only when law is introspected in the context of ordinary social life. Life of the law has not been logic but has been experience. It is a means to serve social purpose and felt necessities of the people. In times of stress, disability, injury, etc. the workman needs statutory protection and assistance. The Act fastens in an insured employment, statutory obligation on the employer and the employee to contribute in the prescribed proportion and manner towards the welfare fund constituted under the Act (Sections 38 to 51 of the Act) to provide . sustenance to the workmen in their hours of need, particularly when they become economically inactive because of a cause attributable to their employment or disability or death occurred while in employment. The fact that the employee contributed to the fund out of his/her hard-earned wages cannot but have a vital bearing in adjudicating whether the injury or occupational disease suffered/contracted by an employee is an employment injury. The liability is based neither on any contract nor upon any act or omission by the employer but upon the existence of the relationship which employer bears to the employment during the course of which the employee had been injured. The Act supplants the action at law, based not upon the fault botas an aspect of social welfare, to rehabilitate a physically and economically handicapped workman who is adversely affected by sickness, injury or livelihood of dependents by death of a workman. (7) Literal construction of the phrase "arising out of his employment" conveys the idea that there must be some sort of connection between the employment and the injury caused to a workman due to the accident. But it is wide enough to cover the case where there may not necessarily be a direct connection of the workman. There may be circumstances tending to show that the workman received personal injury due to the accident that arose during the course of or out of his employment. It would not mean that personal injury only must have resulted from the mere nature of the employment, nor it be limited to cases where the personal injury is referable to duties which the employee has to discharge. The phrase "arising out of the employment" applies to employment as such to its nature, its conditions, by reason of which its workman is brought within the zone of danger and resultant injury, disease or death. In the context of the claims of the labour for social justice under welfare legislation, the principle is that the employer and the employees are so inter-related and dependent on each other that it is in the interest of each that the other should survive, and it is in the interest of society that both should be kept functioning in harmony with each other. The expression "arising out of', therefore, requires the existence of causal connection between the employment and the accident. The employment is the cause and the accident is the effect. The causal relationship between employment and the accident does not logically necessitate direct or physical connection. It may be of various steps, namely, direct, physical, approximate, indirect or incidental.

34. If one has regard to the above, keeping in light the literal construction with the larger object of protection of women from sexual harassment in this case when the Mess was in close vicinity and proximity and within the control of the management, has to be treated as workplace and in such an event, any act complained of, which comes within the ambit of sexual harassment, has been rightly proceeded against the applicant in accordance with binding precedent of guidelines in Vishakas case (supra) under Article 141 of the Constitution.

35. In the matter of interpretation a statute or a rule when interpreted, there should not be any violence to its language, the Court cannot enlarge the scope of legislation where this intention is plain and unambiguous when word is capable of more than one meaning, it has to be resolved in a manner consistent with the purpose of the provision, as ruled by the Constitution Bench of the Apex Court in Prakash Kumar v. State of Gujarat, (2005) 2 SCC 409.

36. In a three Judge Bench in Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 on interpretation held as follows:- Further we wish to clarify that it is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rules is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous then the Courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law giver. The Courts have adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute.

37. Further ruled in Ishwar Swaroop Sharma v. Jagmohan Lal, (2001) 1 SCC 218 that there cannot be any assumption that legislature has used any word without purpose. Accordingly, a Constitution Bench in Dadi Jagannatham v. Jammulu Ramulu & others, (2001) 7 SCC 71, insofar as interpretation of statute is concerned, held as follows:- 13. We have considered the submissions made by the parties. The settled principles of interpretation are that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The Court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly if there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The Court cannot aid the legislature's defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there.

38. Another Constitution Bench in Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370, insofar as dealing with the interpretation of Section 195 Cr. PC is concerned, held the principle of strict construction with the following observation: 29. Dr. Singhvi has also urged that since we are dealing with a penal provision it should be strictly construed and in support of his proposition he has placed reliance upon a Constitution Bench decision in Tolaram Relumal v. State of Bombay wherein it was held that it is well-settled rule of construction of penal statutes that if two possible and reasonable constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty and it is not competent for the court to stretch out the meaning of expression used by the legislature in order to carry out the intention of the legislature. The contention is that since Section 195(1)(b)(ii) affords protection from private prosecution, it should not be given a restrictive interpretation to curtail its scope. We are unable to accept such broad proposition as has been sought to be urged. In Craies on Statute Law (1971 Edn., Chapter 21), the principle regarding penal provisions has been stated as under: "But penal statutes must never be construed so as to narrow the words of the statute to the exclusion of cases which those words in their ordinary acceptation would comprehend. ... '... But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair common-sense meaning of the language used, and the court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument'."

30. In Lalita Jalan v. Bombay Gas Co. Ltd. this question was examined in considerable detail and it was held that the principle that a statute enacting an offence or imposing a penalty is to be strictly construed is not of universal application which must necessarily be observed in every case. The Court after referring to Murlidhar Meghraj Loya v. State of Maharashtra, Kisan Trimbak Kothula v. State of Maharashtra, Supdt. and Remembrancer of Legal Affairs to Govt. ofW.B. v. Abani Maityls and State of Maharashtra v. Natwarlal Damodardas Soni held that the penal provisions should be construed in a manner which will suppress the mischief and advance the object which the legislature had in view.

39. Having regard to the above, discerned point is that once Vishakas guidelines have an underlined object to prevent sexual harassment as a penal provision to mitigate hardship, has to be construed strictly with an interpretation, which would not allow the guilty to escape but to advance the object, which the Apex Court had in view, i.e., curbing of sexual harassment and dealing it strictly to prevent its recurrence.

40. In Union of India & others v. Dudh Nath Prasad, 2000 SCC (L&S) 236 for the purposes of reservation and concession, the word residence was interpreted as per its literal meaning, wherein residence is to be stationed at a place and is dependent upon the context and purpose of a particular statute.

41. Having regard to the above, for the purpose of residence, which is in the close proximity, we cannot take a constrictive or restrictive view but a wider connotation has to be given. Moreover, on literal construction, interpretation ought not be done to work injustice, hardship or inconvenience. Court must always learn to reasonable interpretation and discard such literal construction, which does not fit in with the scheme of Act, as held by the Apex Court in M/s. Girnar Traders v. State of Maharasthra, 2007 (10) SCALE 391.

42. In a Constitution Bench, the Apex Court in Olga Tellis & others v. Bombay Municipal Corporation & others, (1985) 3 SCC 545 as to the interpretation, ruled that any interpretation, which would sustain validity of a provision should be preferred. Accordingly, if in a particular situation in its facts and circumstances, the workplace within its ambit includes a temporary place of residence, like Mess or hostel for the object to prevent harassment to working women, has to be given an interpretation to include it as a workplace, which furthers the object of guidelines in Vishakas case (supra).

43. Learned counsel has vociferously stressed that even as per Vishakas case (supra), sexual harassment shall be when a women employee has reasonable grounds to believe that her objection to such an act would bring her to a disadvantage position in connection with her employment can only be an incident of sexual harassment as a condition precedent. We do not agree. Any interpretation, which gives violence to a provision and frustrates its object, is not a correct view of the matter. What has been construed and defined as a sexual harassment are the acts defined in clause 2 of the guidelines and the condition precedent is that when any of the act complained of and the circumstances in which it has been committed gives a reasonable apprehension to the victim that the conduct would be humiliating and may constitute a health and safety problem in relation to victims work or work has to be construed as a sexual harassment for the purposes of complaint mechanism. The guidelines as an example instanced a situation where one on refusing to sexual desire of a superior, would put the working woman to disadvantage in the matter of promotion or recruitment, has to be treated as sexual harassment, is not the correct interpretation. One of the eventualities has been described, which is not exhaustive but what is of universal application in general is the earlier part of clause 2 where there is a reasonable apprehension of health and safety problem to the victims employment of work then the acts complained of are to be deemed as sexual harassment within its definition.

44. Applying the aforesaid in the present scenario, forcible entry into the room of Ms. Geetali Tare and also forcibly making her sit on the bed and demanding a sexual favour, covers the case within the definition of guidelines in 2 (a), (b) and (c) apart from an offence to outrage the modesty of a woman defined under Sections 354 and 511 IPC. It is also a misconduct within the purview of Rule 3 of Rules 1964 ibid. The contention put forth by applicants learned counsel is a figment of imagination and is misconceived as well, which cannot be countenanced in law.

45. Though we do not examine at present the merits of the case, yet at the outset in the context of right to live with dignity as a fundamental right to a woman citizen of India, an officer of such a high rank by making a complaint without any malice, animus or ulterior motive would expose her repute and character, which could not have been expected from a prudent person as a fabrication or fictitious act. It is when the self-esteem of a person is shocked only then a complaint of this sort emanates on real happening.

46. Be that as it may, the complaint has to be probed into by a laid down mechanism and in such an event, law shall take its own course.

47. As regards procedure to be followed in the complaint mechanism, earlier DOPT OM of 2002, though directed the inquiry report to be a preliminary inquiry report but in view of Medha Kotwal Leles case (supra), the report of complaint committee has to be treated as per Rule 14 of Rules 1965 ibid as a final report in the inquiry. However, the mechanism in the procedure for such an inquiry has not been laid down separately. Though Article 311 (2) of the Constitution ensures following of due process of law before a government servant is inflicted a punishment in the disciplinary proceedings. The only eventuality when the procedure can be dispensed with is Article 311 (2) (a), (b) and (c) of the Constitution on dispensation of inquiry. However, whenever an inquiry is conducted to probe into the misconduct of a government servant, Rule 14 of Rules 1965 has to be followed, which lays down methodology in consonance with the principle of audi alteram partem as an embodied principle of natural justice. The very concept of giving an opportunity by following the procedure is to afford reasonable opportunity to the concerned to effectively defend the charges. Even if the rule, procedure or a mechanism does not envisage principles of natural justice, yet those are implicit in the rules unless specifically excluded, as held by the Apex Court in J.A. Naiksatam v. Prothonotary & Senior Master, High Court of Bombay & others, 2005 (2) SLJ SC 29.

48. What is required in the system and in the act of an administrative authority within the ambit of principles of natural justice is fairness in the procedure, as ruled by the Apex Court in ------Kumaon Mandal Vikas Nigam Limited v. Girja Shankar Pant, (2001) 1 SCC 182.

49. Though as per the decision in Medha Kotwal Leles case (supra) the inquiry report has to be treated as final in the complaint mechanism, yet the issue of procedure to be adopted has not been commented upon. It is trite that when a government servant is to be inflicted a penalty, due procedure in law has to be adopted. The only provision, which provides methodology and procedure to follow in a disciplinary proceeding is Rule 14 of Rules 1965. When the guidelines issued by the DOPT do not contemplate procedure to be adopted, the only procedure available in service jurisprudence, being CCA (CCS) Rules, 1965 has to be necessarily followed.

50. In Sandeep Khuranas case (supra) when a State Complaint Committee has given its finding, the departmental complaint committee when not followed the procedure laid down under Rule 14 of Rules 1965, the penalty was set aside. Though there is an LPA pending sub judice against it, yet this does not obliterate the above order to be treated as a precedent.

51. Moreover, rules of natural justice have to be followed despite the complaint is deemed to be a charge sheet, yet right guaranteed to a government servant to be apprised of all the material relied upon against him to establish charge, including a definite imputation, list of witnesses, documents cannot be dispensed with as a condition precedent.

52. Necessary corollary, which emerges from the above when pointed out to learned senior counsel for the respondents, he had fairly stated to incorporate as a procedure the safeguards as per the principles of natural justice in holding of the disciplinary proceedings. In the above view of the fact, we have no hesitation to rule that though the complaint mechanism and the committee formed therein, has to be treated as an inquiring authority with its report to be a deemed inquiry report within the ambit of Rule 14 of Rules 1965, yet the respondents are not absolved from as an obligation to hold the inquiry by following the procedure as laid down under Rule 14 of Rules 1965.

53. The above discussion now brings us to the last submission of applicants counsel as to stay of the proceedings in the complaint mechanism till disposal of the criminal trial instituted on the same set of facts sub judice before the Metropolitan Magistrate.

54. Office Memorandum dated 1.8.2007 of the respondents provides as under:- Office Memorandum Subject: Simultaneous action of prosecution in a court and initiation of departmental proceedings. The undersigned is directed to refer to the M.H.A. O.M. No.39/30/54-Ests. dated the 7th June, 1955 and No.39/8/64-Ests. dated the 4th November, 1964, on the above subject which state that prosecution should be the general rule in all cases which are found fit to be sent to Court and in which the offences are of bribery, corruption or other criminal misconduct involving loss of substantial public funds and that in such cases, departmental action should not precede prosecution. References are being received in this Department seeking clarification as to whether departmental action can also be taken, where the same matter has been taken up in a court of competent jurisdiction for prosecution of the Government servant concerned.

2. What may be deduced from the above instructions is that in serious cases involving offences such as bribery/corruption etc., action should be launched for prosecution as a matter of course. The Honble Supreme Court had held in their various judgements, the important ones being, State of Rajasthan Vs. B.K. Meena & Others (1996 6 SCC 417), Capt. M. Paul Anthony Vs. Bharat Gold Mines Limited (1999 3 SCC 679), Kendriya Vidyalaya Sangathan & Others Vs. T. Srinivas (2004) (6) SCALE 467) and Noida Entrepreneurs Association Vs. Noida (JT 2007 (2) SC 620), that merely because a criminal trial is pending, a departmental inquiry involving the very same charges as is involved in the criminal proceedings is not barred. The approach and objective in the criminal proceedings and disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against the Government servant are established and if established, what sentence can be imposed on him. In serious nature of cases like acceptance of illegal gratification, the desirability of continuing the concerned Government servant in service in spite of the serious charges leveled against him may have to be considered by the Competent Authority to proceed with departmental action.

3. However, if the charge in the criminal case is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. This will depend upon the nature of offence and the evidence and material collected against the Government servant during investigation or as reflected in the charge-sheet. If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were kept pending on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty, his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest, if the case so warrants.

4. In the case of Hindustan Petroleum Corporation Ltd. Vs. Sarvesh Berry (2004 (10) SCALE Page 340), it has been held in Para 9 that it is not desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the back drop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental inquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. The apex court has referred to the conclusions given in Para 22 of Captain M. Paul Anthonys case.

5. It is, therefore, clarified that stay of disciplinary proceedings is not a must in every case, where there is a criminal trial on the very same charges and the concerned authority may decide on proceeding with the departmental proceedings after taking into consideration the facts and circumstances of each case and the guidelines given by the Honble Supreme Court, as mentioned in the preceding paragraphs.

6. All Ministries/Departments are, therefore, requested to keep in view the above guidelines while dealing with cases of criminal misconduct of Government servants.

55. Having regard to the above, stay of a proceeding has a purpose. The defence of a government servant to be taken in criminal trial when both the proceedings are founded on same set of facts should not be on disclosure prejudice him to his detriment. However, it is not a ritual in each case. We cannot put the above principle in a straightjacket formula. Each case has to be examined in the background of its facts and circumstances. When it is found that both the proceedings, departmental as well as criminal, are founded on same facts with identical charges, the issue would be whether the allegations leveled as an offence in criminal case are of grave nature involving complicated questions of law and fact or not?

56. Taking a holistic view of all the cases on the subject of parallel proceedings, the Apex Court in Sarvesh Berrys case (supra) ruled as follows: 7. It is fairly well-settled position in law that on basic principles proceedings in criminal case and departmental proceedings can go on simultaneously, except in some cases where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is common. It is in these cases, the Court has to decide, taking into account special features of the case, whether simultaneous continuance of both would be proper.

8. The purpose of departmental enquiry and of prosecution is two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act 1872 (in short the 'Evidence Act'). Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the department enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances.

9. A three-judge Bench of this Court in Depot Manager, A.P. State Road Transport Corporation v. Mohd. Yousuf Miya and Ors. (1997 (2) SCC 699) analysed the legal position in great detail on the above lines.

10. The aforesaid position was also noted in State of Rajasthan v. B.K. Meena (1996 (6) SCC 417).There can be no straight jacket formula as to in which case the departmental proceedings are to be stayed.

11. There may be cases where the trial of the case gets prolonged by the dilatory method adopted by delinquent official. He cannot be permitted to, on one hand, prolong criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending.

12. In Capt. M. Paul Anthony's case (supra) this Court indicated some of the fact situations which would govern the question whether departmental proceedings should be kept in abeyance during pendency of a criminal case. In paragraph 22 conclusions which are deducible from various decisions were summarised. They are as follows:

(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.

(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.

(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.

(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.

(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest.

13. It is to be noted that in cases involving Section 13 (1)(e) of the P.C. Act, the onus is on the accused to prove that the assets found were not disproportionate to the known sources of income. The expression 'known sources of income' is related to the sources known to the authorities and not the accused. The Explanation to Section 13(1) of the P.C. Act provides that for the purposes of the Section, "known sources of income" means income derived from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. How the assets were acquired and from what source of income is within the special knowledge of the accused. Therefore, there is no question of any disclosure of defence in the departmental proceedings. In the criminal case, the accused has to prove the source of acquisition. He has to satisfactorily account for the same. Additionally, issues covered by charges 2 and 3 cannot be the subject matter of adjudication in the criminal case.

14. That being the position, the High Court was not justified in directing stay of the departmental proceedings pending conclusion of the criminal charge. As noted in Capt. M. Paul Anthony's case (supra) where there is delay in the disposal of a criminal case the departmental proceedings can be proceeded with so that the conclusion can be arrived at an early date. If ultimately the employee is found not guilty his honour may be vindicated and in case he is found guilty the employer may get rid of him at the earliest.

57. Applying the above ratio, the allegation leveled against the applicant in the disciplinary proceedings is of sexual harassment at workplace whereas in the criminal trial, he has been charged for trespassing and outraging the modesty of a woman employee. We do neither any grave charge against the applicant in criminal trial, nor are there any complicated questions of fact and law involved in the case.

58. From the perusal of the guidelines in Vishakas case (supra) whereas clause 4 deals with a criminal proceeding and clause 5 when talks of conduct, which amounts to misconduct to be dealt with under relevant Service Rules, i.e., CCS (CCA) Rules, 1965, yet clause 6 where the complaint mechanism has been provided is irrespective of whether the conduct constitutes an offence or a breach of Service Rules. In all cases, any conduct, which amounts to sexual harassment whether at workplace or not, has to be dealt with by an appropriate complaint mechanism in a time bound manner, leaves no doubt in our mind that irrespective whether it is workplace or residence, though now Domestic Violence Act, 2005 has been promulgated, yet the complaint mechanism is a must even in other situations a condition precedent for arriving at a final view of the matter.

59. In such view of the matter, a criminal trial is conducted for an offence whereas disciplinary proceedings for alleged misconduct as per Vishakas case (supra). Standard of proof in both the proceedings, being different, merely because the proceedings are rested on same facts and charges, it is in public interest as well as in the interest of applicant that disciplinary proceedings be proceeded expeditiously and to be brought to logical conclusion. However, on outcome of the criminal trial, law shall take its own course.

60. In the result, for the foregoing reasons, the interference in the inquiry at an interlocutory stage is not prima facie made out by the applicant. We do not find the inquiry being contrary to law and our above view is supported by the decisions of the Apex Court in Meerabai and K.S. Swaminathan (supra). However, insofar as the right of the applicant to be proceeded against in the complaint mechanism as per Vishakas case (supra), we reiterate that during the course of proceedings in the complaint mechanism, due procedure laid down under Rule 14 of Rules 1965 shall have to be followed by the respondents.

62. With the above observations above, OA stands disposed of. Stay granted is accordingly vacated. No costs. ( Chitra Chopra ) ( Shanker Raju ) Member (A) Member (J) /sunil/