O R D E R (ORAL)
PER: JUSTICE S. SUJATHA, MEMBER (J)
The applicant has challenged the Inquiry Report dated 21.01.2021 submitted by Respondent No. 2 (Annexure-A14) inter alia challenging the order bearing No. Ref: NIRM/CDA/CCS (CCA)/110/2020-21 dated 17.03.2021 passed by the Respondent No. 3 (Annexure-A17).
2. The facts in brief as stated by the applicant are that, she was appointed as Scientist-I in the office of National Institute of Rock Mechanics (NIRM) in the year 2008 where Director, NIRM is the Chief Executive Officer. The applicant was promoted as Scientist-II on 20.10.2013 and as Scientist-III on 20.10.2018. The applicant filed a complaint dated 16.12.2019 with the 3rdrespondent against the Respondent No. 6 herein alleging mental harassment wherein it was specifically alleged that the 6threspondent commented on her personal life. The 3rdrespondent marked the copy of the said letter to the 5threspondent for advice.
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3. It is the grievance of the applicant that 5threspondent became vindictive against the applicant and proceeded to the extent of assigning the work during her sanctioned leave (CCL) and deliberately ridiculed her project work by mentioning her name below 6threspondent. Thereafter, the applicant made a complaint dated 21.10.2020 against the 6threspondent before the 2ndrespondent under the provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ('Act' for short). The complaint was referred to the 2ndrespondent for an inquiry and the 2ndrespondent conducted a preliminary inquiry into the complaint. Further, a regular inquiry was held. The 2ndrespondent submitted the Inquiry Report dated 21.01.2021 to the 3rdrespondent who issued the copy of the Inquiry Report to the applicant on 22.02.2021 pursuant to which the applicant submitted representation dated 05.03.2021 to the 3rdrespondent. Though she candidly stated that the Inquiry Report is perverse and biased, the applicant was imposed a punishment by the 3rdrespondent by an order dated 17.03.2021. Being aggrieved, the applicant submitted a statutory appeal to the Appellate Authority under Rule 34 of the Employees' Conduct, Discipline and Appeal Rules of NIRM. The Appellate Authority has not
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considered the appeal filed by the applicant. Hence, this application.
4. Learned counsel Shri M. Subramanya Bhat representing the applicant submitted that the provisions of the Act are intended to safeguard the interest of the women at workplace and, therefore, a duty is cast on the Internal Committee to conduct unbiased proceedings. However, the Internal Committee has thrown this cardinal principle to the winds. The recommendation of the Internal Committee is bad. The committee has traversed beyond its authority. No Presenting Officer was appointed and no charge sheet was issued. The committee deliberately discarded the evidence tendered by the witnesses who had corroborated the allegation made in the complaint against the Respondent No. 6. The members of the committee were totally biased against the applicant. The penalty order passed by the Disciplinary Authority impugned (Annexure-A17) goes against the basic principle of service jurisprudence as no notice was issued to the applicant to impose any punishment on her. No grievance made by the applicant in the representation were considered by the Disciplinary Authority in a proper perspective. Learned counsel further argued that the
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impugned order passed by the Disciplinary Authority is a cryptic order without assigning any valid reasons. Hence, seeks for interference of this Tribunal.
5. Learned counsel Shri Sujayendra S, appearing for the Respondents No. 5 and 6, justifying the action of the official respondents argued that the applicant has filed the complaint with a malicious intention to damage the reputation of these respondents. The final report submitted by the committee that the charges alleged against the 6threspondent remained unproved and the compliant is malicious is based on the material on record. The Internal Committee has conducted the inquiry in accordance with Rules 14 and 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 ('Rules, 1965' for short), in terms of the directions of the Government of India, Department of Personnel & Training (DOPT) Office Memorandum dated 27.11.2014. The grievance made by the applicant is work related. The said allegations, at no stretch of imagination, can be construed to come within the definition of sexual harassment as defined in Section 2 (n) of the Act and consequently Section 3 (2) of the Act, read with Rule 3-C of the Central Civil Services (Conduct) Rules,
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1964. A detailed inquiry was conducted by the Internal Committee and rendered its final report which has been accepted by the 3rdrespondent. No penalty order has been imposed by the 3rdrespondent. The order impugned indicates that only a warning has been issued which is distinguishable from the order of penalty in the form of censure as contended.
6. Learned counsel further submitted that Clause 34 of NIRM Employees' Conduct, Discipline and Appeal Rules provides for an appeal in case of penalty and suspension. Since the present case is not covered under both the heads, no appeal is maintainable before the Appellate Authority. No hostile workplace was created by the respondents either in the form of gender discrimination or with sexual overtones. The appointment of Presenting Officer and framing of formal charge sheet is discretionary and not mandatory. The Committee is empowered to recommend action to be taken against the complainant if the allegation is malicious. No grounds have been made out by the applicant calling for interference with the inquiry conducted by the 2ndrespondent which has been accepted by the 3rdrespondent. The allegations are only vindictive
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with sole intention to harass the Respondents No. 5 and 6. Accordingly, seeks for dismissal of the application.
7. Learned counsel Shri S. Prakash Shetty representing Respondents No. 1 to 4, supporting the arguments advanced by the learned counsel for the private respondents, submitted that the allegation of sexual harassment made against the Respondent No. 6 is false and baseless. The committee has conducted the inquiry in accordance with Rules 14 and 15 of the Rules, 1965 and the Office Memorandum dated 27.11.2014. The committee and the Disciplinary Authority, after making detailed inquiry, have come to the conclusion that there is no sexual harassment as contemplated under Rule 3-C of the Central Civil Services (Conduct) Rules, 1964. Learned counsel further submitted that the Respondent No. 3 has not imposed any penalty on the applicant within the scope of Rule 11 of the Rules, 1965. The Internal Committee proceedings and the order of the Disciplinary Authority impugned are in order and as per law and, as such, the contentions raised by the applicant are baseless. Accordingly, seeks for dismissal of the application.
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8. We have carefully considered the submissions of the learned counsel for the parties and perused the material on record.
9. The Internal Committee submitted the report dated 21.01.2021. The committee has framed the issues as under:
1. Whether the issue relating to HOD not taking the issue seriously is maintainable in IC?
2. Whether the 'personal remark' as alleged by the complainant in her complaint amounted to sexual harassment at workplace?
3. Whether the 'mental torture' alleged by the complainant in her complaint amounted to hostile work environment as related to sexual harassment or having sexual overtones?
4. Whether 'severe bias' as alleged by the complainant amounted to hostile work environment as related to sexual harassment or having sexual overtones?
10. On analysing the material aspects on these issues, the committee has given the findings as under:
"The issues raised in this are work related issues. The committee finds no instance of sexual harassment. The conduct
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of the complainant/allegations against the respondent by the complainant has amounted to malicious intent in misleading the Internal Committee as per the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. This is deduced after the detailed inquiry and witness examination."
11. Further, the committee made the following recommendation:
"The Competent Authority to impose a minor penalty in accordance with service/conduct rules and to issue a warning letter to the complainant to deter her from indulging in activities that would jeopardize the reputation and respectable work environment of any person working with or under her and to exercise prudence while delivering responsibilities with regard to co-employees and superiors.
The recommendations to be executed with immediate effect."
12. Office Memorandum dated 16.07.2015 issued by the DOPT contemplates steps for conducting inquiry in case of allegation of sexual harassment. In terms of Clause 26 of the said Office Memorandum, powers of the committee to make recommendations are envisaged as under:
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"Powers of the Committee to make recommendations
26. Normally, the Inquiry Officer is not allowed to make any recommendations in his report. Here the function of the Complaints Committee acting as the Inquiring Authority differs. The Complaints Committee may however make recommendations including what has been mentioned in para 2 above:
(c) to grant such other relief to the aggrieved woman as may be prescribed; or
(d) to deduct from the salary or wages of the charged officer such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs. Any amount outstanding at the time of cessation of the services of the charged officer due to retirement, death or otherwise may be recovered from the terminal benefits payable to the officer or his heirs.
Such compensation will not amount to penalty under Rule 11 of CCS (CCA) Rules in terms of the Explanation (ix) to Rule 11 inserted vide Notification of even Number dated 19- 11-2014.
The Committee may recommend action to be taken against complainant, if the allegation is malicious, or the complainant knows it to be false, or has produced any forged or misleading document.
The Committee may also recommend action against any witness if such witness has given false evidence or produced any forged or misleading document."
13. In terms of Section 14 (1) of the Act, the Internal Committee may recommend to the employer or the District Officer,
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as the case may be, to take action against the woman or the person who has made the compliant under sub-section (1) or sub-section
(2) of Section 9, as the case may be, in accordance with the provisions of the service rules applicable to her or him or where no such service rules exist, in such manner as may be prescribed. The 2ndproviso to the said section provides further that the malicious intent on the part of the complainant shall be established after an inquiry in accordance with the procedure prescribed, before any action is recommended.
14. Undisputedly, no inquiry has been held to establish malicious intent on the part of the complainant before making the recommendation for imposing the minor penalty and to issue the letter of warning against the applicant/complainant. On this infirmity, the recommendations made by the committee pursuant to its finding recorded is wholly unsustainable.
15. It is the specific contention of the applicant that the 2ndproviso to Section 11 (1) of the Act has not been complied with. The copy of the findings was not made available to her to make representation against the findings before the committee. The final
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findings and the recommendations of the Internal Committee are made in the Inquiry Report dated 21.01.2021 and the same has been submitted to the Disciplinary Authority pursuant to which the Disciplinary Authority has forwarded the report to the applicant giving an opportunity to submit representation, if any, to him. As such, the complainant, being aggrieved by the findings and recommendations of the Internal Committee, submitted the representation before the Disciplinary Authority. Based on the said representation, the impugned order dated 17.03.2021 has been passed by the Disciplinary Authority. The said order is cryptic and vague. No reasons are assigned for arriving at a decision inasmuch as the applicant has let off with a warning. This order being based on the recommendations of the committee and the said recommendations are held to be unsustainable by us in the preceding paragraphs, this consequential order of the Disciplinary Authority has no significance and is unjustifiable.
16. As per the Office Memorandum dated 02.08.2016 (Annexure-A24), where a Complaint Committee has not recommended any action against the employee against whom the allegation have been made in a case involving allegations of sexual
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harassment, the Disciplinary Authority shall supply a copy of the Report of the Complaint Committee to the complainant and shall consider her representation, if any submitted, before coming to the final conclusion. The representation shall be deemed to be an appeal under Section 18 (1) of the Act. In the present case, the copy of the report of the Complaint Committee has been supplied to the applicant calling for the representation, as such, the representation submitted by the applicant is deemed to be an appeal under Section 18 (1) of the Act. While exercising the power of the Appellate Authority, a quasi-judicial function, reasons are sine qua non for an order. In the absence of such reasons, the order becomes lifeless. Hence, on this ground of breach of fundamental principles of natural justice, the order dated 17.03.2021 (Annexure-A17) cannot be approved.
17. For the reasons aforesaid, we pass the following
:ORDER:
1) The recommendations made by the Internal Committee dated 21.01.2021 (Annexure-A14) are set aside.
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2) Consequently, the order passed by the Disciplinary Authority dated 17.03.2021 (Annexure-A17) inasmuch as accepting the recommendations of the Internal Committee and disposing of the representation submitted by the applicant with an observation that the applicant is let off with a warning, not being justifiable, liable to be set aside. Ordered accordingly.
3) OA stands disposed of in terms of above.
4) No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/