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2019 (5) TMI 2004 - HC - Indian LawsPenalty of withholding of 50% of monthly pension of the petitioner on permanent basis - complaint of sexual harassment - full facts not mentioned in the inquiry report - HELD THAT - What is important to note is that a complaint dated 18.09.2012 along with five Annexures was submitted by Smti. Sunita Singha to the Chairperson of the CCC and copy of such complaint was also made available to the petitioner. In the inquiry report the above fact is not mentioned. It also does not appear that the said complaint was brought to the notice of the disciplinary authority. The CCC was mandated by the authority to inquire into the complaint dated 30.08.2011. However, it is manifest from the inquiry report that the complaint submitted on 18.09.2012 was also taken into consideration - The requirement of the officer proceeded against to be formally asked whether he pleads guilty or not would, according to the understanding of the court, is not an opportunity to such officer only to answer the same in a mono-syllable. To give meaning to the word formally , a real and effective opportunity has to be granted to the officer concerned to make his comment in writing in response to the complaint. Apparently, no such opportunity was afforded. There is no indication that in respect of the complaint dated 18.09.2012, the officer was even asked as to whether he pleads guilty to the allegations made therein or not. Clause 10(11) of the Complaint Mechanism provides that complaint shall contain all the material and details concerning the alleged sexual harassment. What were the allegations in the complaint filed on 30.08.2011 after the petitioner had filed an ejahar on 26.08.2011 have already been taken note of. A perusal of the ten points would go to show that Point Nos. 1 to 6, 7(b) to (f), 9 and 10 are no way connected to the complaint dated 30.08.2011. Two inquiries had also taken place and, after more than a year later, after lodging of the complaint dated 30.08.2011, another complaint with many allegations was submitted to the Chairperson of the CCC on 18.09.2012. The CCC could not have entertained such a complaint for the purpose of a disciplinary proceeding in absence of entrustment in terms of Standing Order. In Narendra Mohan Arya 2006 (4) TMI 570 - SUPREME COURT , the Supreme Court had observed that in a domestic inquiry fairness in the procedure is a part of the principles of natural justice and that it is not possible to lay down any rigid rules of the principles of natural justice which depend on the facts and circumstance of each case but the concept of fair play in action is the basis and the inquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject-matter of the charges is wholly illegal. It is noticed that the prosecution witnesses were also put questions by the CCC, which is evident from the report of the CCC under the heading V. Examination of witnesses , wherein the CCC itself recorded that CCC had conducted the examination-in-chief whenever it felt necessary. Thus, it is evident that the CCC also played the role of prosecutor, which vitiates the proceeding - The CCC is to record its finding based on evidence on record and not on surmises and conjectures. It will be worthwhile to recall that the prayer of the complainant for a transfer was rejected on 24.08.2011 and based on a threatening message issued by the husband of the complainant on 26.08.2011, the petitioner had lodged the ejahar on 26.08.2011. These aspects were, however, not weighed by the CCC. The order dated 05.01.2016, imposing penalty upon the petitioner, cannot be sustained in law - Petition allowed.
Issues Involved:
1. Validity of the Central Administrative Tribunal (CAT) judgment dated 03.07.2015. 2. Legality of the penalty order dated 05.01.2016 withholding 50% of the petitioner’s monthly pension. 3. Procedural propriety in the constitution and functioning of the Central Legal Complaint Committee (CCC). 4. Compliance with Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. 5. Adherence to principles of natural justice and fairness in the inquiry process. 6. Legitimacy of the complaint dated 30.08.2011 and subsequent complaints. 7. Examination of evidence and findings by the CCC. Detailed Analysis: 1. Validity of the CAT Judgment: The petitioner challenged the CAT judgment dated 03.07.2015, which dismissed his Original Application (O.A. 181/2013). The CAT directed the respondents to complete the departmental proceedings within four months. The petitioner argued that the CAT failed to consider procedural irregularities and violations of natural justice in the inquiry process. 2. Legality of the Penalty Order: The penalty order dated 05.01.2016 imposed a permanent withholding of 50% of the petitioner’s monthly pension. This penalty was rooted in a complaint of sexual harassment dated 30.08.2011 by Smti. Sunita Singha. The petitioner contended that the penalty was imposed without a proper disciplinary proceeding and in violation of Rule 14 of the Rules of 1965. 3. Procedural Propriety in the Constitution and Functioning of the CCC: The petitioner argued that the CCC was improperly constituted and that the earlier Frontier Level Complaint Committee (FLCC) report was annulled on specious grounds. The CCC was formed with Smti. B. Radhika as Chairperson and included members from SSB and an Associate Professor from Jawaharlal Nehru University. The petitioner contended that the CCC's inquiry was biased, lacked a Presenting Officer, and denied him the assistance of a Defence Assistant. 4. Compliance with Rule 14 of the Rules of 1965: The petitioner argued that Rule 14 was violated as no Charge-sheet was served, and he was not given an opportunity to submit a detailed written statement. The respondents contended that the complaint itself was treated as the Charge-sheet, and the CCC was deemed the inquiring authority as per the amended Rule 14(2). 5. Adherence to Principles of Natural Justice and Fairness: The petitioner claimed gross procedural irregularities and bias in the CCC proceedings. He was not given adequate time to engage a Defence Assistant, and the CCC conducted the examination-in-chief of witnesses. The court noted that the CCC played the role of prosecutor, which vitiated the proceedings. 6. Legitimacy of the Complaint Dated 30.08.2011 and Subsequent Complaints: The complaint dated 30.08.2011 contained allegations of sexual harassment, which were later supplemented by a complaint dated 18.09.2012. The petitioner argued that the latter complaint could not be entertained for the disciplinary proceeding. The court observed that the CCC could not have entertained the 18.09.2012 complaint without proper entrustment. 7. Examination of Evidence and Findings by the CCC: The court found that the CCC's findings were based on conjectures rather than evidence. The CCC accepted allegations without corroborative evidence, such as call records. The court noted that the CCC failed to consider the context of the threatening message and the subsequent lodging of the ejahar by the petitioner. Conclusion: The court concluded that the order dated 05.01.2016 imposing the penalty on the petitioner could not be sustained in law. The court set aside and quashed the penalty order and directed the respondents to release the withheld monthly pension within three months. The writ petition was allowed, emphasizing the need for adherence to procedural fairness and natural justice in disciplinary proceedings.
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