Rajwant Sandhu, Member, (A).
1. This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s):-
(i) The impugned charge memo dated 01.07.2013/05.06.2013 (Annexure A-1) and impugned notice dated 20.05.2014 (Annexure A-2) be quashed/set aside.
(ii) Direction in the nature of mandamus be issued directing the Competent Authority, respondent No. 1 to treat the final inquiry report submitted by the Second SHC of BSNL Corporate Office (Annexure A-13) as either accepted or rejected in toto and not to consider the same as Investigation Report for the purpose of taking any further action against the applicant.
2. It is stated in the OA that the applicant is an ITS Group ‘A’ officer and belongs to Ministry of Communication and Information Technology. While working as General Manager, Telecom, BSNL at Amritsar, he was transferred to the post of General Manager (Infra) in the office of Chief General Manager, Telecom, Haryana Telecom Circle at Ambala, where he joined in July, 2010. Ms. Nupur was posted and joined as JTO (Infra) in the office of the applicant on 09.08.2010 who without any reason and under the influence and instigation of some representative of association/union person, filed a complaint of sexual harassment against the applicant on 11.08.2010. The said complaint of the JTO was forwarded to the Circle Sexual Harassment Committee, Ambala. On the basis of complaint of female JTO (Infra), just after few hours on 11.08.2010 itself, Circle SHC submitted its report with a recommendation that applicant be suspended/transferred and suitable disciplinary action under Rule 11 of CCS Conduct Rules be initiated, consequent to which applicant was placed under suspension on 11.08.2010 itself by the equal/same rank officer (General Manager) of BSNL, Ambala Circle.
3. The applicant challenged order of suspension dated 11.08.2010 (Annexure A-9) before this Tribunal by filing OA No. 756/HR/2010 titled R.K. Dawra Vs. UOI & Ors. and the same was quashed through judgement dated 20.10.2010 (Annexure A-10). Pursuant to this order, the competent authority reinstated the applicant and posted him as General Manager (SAG), Patna in the office of CGM, Bihar Circle and applicant joined his duties at Patna on 15.02.2011. The applicant was later transferred to Chandigarh as DDG, NT, Punjab, and joined at Mohali on 21.05.2013. The first report of Sexual Harassment Committee of Circle Level, BSNL, Ambala, which inquired into the alleged complaint made by Ms. Nupur, JTO, was not accepted by the Competent Authority being lower level Sexual Harassment Committee and also having some discrepancies. As per orders of Respondent No. 1, competent authority, second Sexual Harassment Committee of the BSNL Corporate Office was constituted as per Annexure A-7 and the Committee completed the inquiry. However, the inquiry report had not been accepted on the ground that procedure as prescribed under Rule 14 of CCS (CCA) Rules, 1965, had not been followed like Memo of Charge not issued, P.O. was not appointed, examination/cross-examination of witnesses had not been done, opportunity of defence to charged officer through Defence Assistant, if desired has not been given etc. meaning thereby that the Competent Authority, respondent No. 1 discarded completely the first report of Sexual Harassment Committee in toto which is reproduced in Annexure A-7. In para 28 of the copies of note sheets supplied to the applicant during the inquiry demanded by him it was envisaged 'it is proposed that second report of SHC may be treated as investigation report and recommendations made by the committee for initiation of appropriate action under CCS (CCA) Rules against Sh. R.K. Dawra, the then G.M. may be accepted' (Page 71 of paper book 30/N File No. 8-17/2011/Vig.II). Second SHC of BSNL Corporate Office issued investigation report dated 26.10.2010 (Annexure A-13) received by applicant on 31.03.2014 as supporting document to charge sheet dated 01.07.2013 (Annexure A-1). Even after the submission of inquiry report by the SHC, which as per DOPT OM dated 04.08.2005 (Annexure A-5) is to be treated as final inquiry report and further action is to be taken by the disciplinary authority as per Rule 14 of CCS (CCA) Rules, 1965, without proceeding further with the inquiry report, and finally treating the said final report as investigation report, respondent No. 2 issued an illegal memorandum dated 01.07.2013 (Annexure A-1) in violation of the statutory and mandatory provisions of CCS (CCA) Rules, as after the submission of final inquiry report, there cannot be another charge sheet to re-inquire the matter again.
4. It is also stated that while charge memo dated 01.07.2013 (Annexure A-1) issued by respondent No. 2 was pending, third SHC with a malicious intent and pre-determined mind to indict the applicant falsely, issued another statement of charge dated 20.05.2014 (Annexure A-2) alleging violation of CCS (Conduct) Rules and by applying/covering the so-called alleged offence under the provisions of Sexual Harassment of Women at Work (Prevention, Prohibition & Redressal) Act, 2013. The said action of respondent No. 3 in issuing second statement of charge and also applying the provisions of the Act, which came into effect from 2013 and having prospective effect on the applicant, pending the charge memo dated 01.07.2013 (Annexure A-1) is totally illegal, arbitrary and untenable in the eyes of law and clearly depicts the malafide and biased mind of the SHC who are hell bent to illegally rope in and indict the applicant in one way or the other. The applicant immediately on receipt of the said statement of charge dated 20.05.2014 (Annexure A-2) submitted a representation dated 22.05.2014 (Annexure A-15) to respondent No. 4 submitting that the charges against him cannot be framed under Sexual Harassment of Women at Work (Prevention, Prohibition and Redressal) Act, 2013 as the same has prospective applicability and the alleged offence in question is dated 11.08.2010 and the provisions of the Act cannot be made applicable on him. Further, in the said representation it is also submitted that since a charge sheet dated 01.07.2013 (Annexure A-1) is already being inquired into, how two charge sheets can be served to him for the same alleged offence. However, the said SHC has without even replying to the objections raised by the applicant vide representation dated 22.05.2014 (Annexure A-15) is going ahead with the inquiry pursuant to Statement of Charge dated 20.05.2014 (Annexure A-2) in complete violation & derogation of CCS (CCA) Rules, 1965. Hence this OA.
5. It has also been stated in this OA that the contention of the applicant regarding the submission of the false complaint of sexual harassment by Ms. Nupur at the behest and instigation of Association/Union is fortified from the perusal of order dated 21.02.2012 (Annexure A-16) passed by Hon’ble Punjab & Haryana High Court in CMP No. 7503 of 2011 titled M.S. Kadian Vs. State of Haryana & Others filed by the Circle Secretary of BSNL Employees Union praying for closing of investigation in FIR No. 372 dated 18.08.2010 u/s 294/354/218 IPC to CBI as the police authorities after investigation of the alleged offence had filed closure untraced report which was accepted by the competent court of learned Judicial Magistrate, Ambala.
6. In the grounds for relief, it has been stated as follows:-
(i) It is on the record that OM dated 04.08.2015 (Annexure A-5) and FAQ (Annexure A-14) passed by the DOPT read with Rule 14(2) and proviso thereunder of CCS(CCA) Rules, 1965 as well as the judgement passed by the Hon’ble Supreme Court mentioned in Annexure A-5 has not been followed, as already dealt by the competent authority in the note sheets (Annexure A-7) received by the applicant during the inquiry from the office of respondent No. 1 whereby first report of SHC of Circle level was discarded by the competent authority as well as second SHC report (Annexure A-13) though rejected but was considered, as an Investigation Report, whereas keeping in view the statutory provisions of the rules above read with DOPT orders A-5, FAQ A-14, competent authority had either to accept or reject the second SHC inquiry report in toto and cannot partially be accepted for the purpose of issuance of subsequent charge sheet to the applicant as has been done (Annexure A-1) which is not allowed by the Nodal Ministry DOPT A-5, A-14 read with provisions of Rule 14(2) as the competent authority of the DOT has to pass orders in accordance with the provisions of the rules and law. However, while issuing impugned charge memo (Annexure A-1), the statutory provisions of the rules and orders of the DOT have not been taken into consideration by the competent authority. Hence, whole action on the part of Competent Authority in issuance of the charge memo is non-est in law.
(ii) The Statement of Charge dated 20.05.2014 (Annexure A-2) issued by respondent No. 4 is unwarranted and untenable in law as the disciplinary authority has already issued a charge sheet dated 01.07.2013 (Annexure A-1) which was being inquired into, then the issuance of subsequent Statement of Charge (Annexure A-2) cannot be served to the applicant for the same alleged offence. Moreover, the charges against the applicant cannot be framed under Sexual Harassment of Women at Work (Prevention, Prohibition & Redressal) Act, 2013 as the provision of the Act has prospective applicability and the alleged offence in question is dated 11.08.2010 and thus, the provisions of the Act cannot be made applicable on the applicant. Hence, whole action on the part of respondents No. 2 & 4 in issuance of Statement of Charge is non-est in law and thus, the same is liable to be quashed in the interest of justice.
7. In the written statement filed on behalf of the respondents, the facts of the matter have not been disputed. It has further been stated that when the applicant was posted as General Manager (Infra) in BSNL, Ambala, he sexually harassed Ms. Nupur, JTO on her very first day of joining service in the Department. After the matter was reported, the Chief General Manager of Haryana constituted a Committee to examine the matter and the Committee found the allegation made by Ms. Nupur to be true. The matter was also reported to CMD, BSNL. Since it was noticed that the Committee was headed by a person who was below the rank of the applicant, the matter was then referred to a High Level Committee (HLC) formed in BSNL. This Committee submitted its report and in view of the applicant being a DOT official, the matter was referred to DOT. The applicant vide his representation dated 03.06.2011, represented to Department (DOT) and raised the issue of the violation of the procedure and safeguards available to Government servant under Article 311(2) of the Constitution. In his representation, he stated that he was not informed of the specific charges against him and was not given reasonable opportunity to defend himself, further statements of witnesses were recorded behind his back and opportunity to cross-examine the witnesses as etc. etc. were not provided. Applicant also contended in his representation that mandatory procedure prescribed under Rule 14 was not followed by the BSNL Committee, and also mandatory procedural safeguards under Article 311(2) of the Constitution were not followed in any manner by the Complaint Committee of BSNL and contended that the report of the Complaint Committee was a preliminary report only. Applicant represented citing/forwarding the copy of the judgement of Hon’ble Delhi High Court in the matter of Sandeep Khurana Vs. Delhi Transco Ltd., 135/2006 DLT 346 that procedure to be adopted in the case would be as that envisaged in the Rule 14 of the CCS (CCA) Rules.
8. The BSNL HLC was then instructed to reinvestigate the matter as per the rule and procedure. However, BSNL Committee refused to reinvestigate the matter again citing some objections. Considering the representation of the applicant dated 03.06.2011 that he was not given reasonable opportunity to defend himself, that the Complaint Committee report is a preliminary report only, and that the procedure should be adopted as per the Rule 14, the matter was referred to DOPT for advice. DOP&T vide letter No. 11013/4/2013-Estt (A) dated 01.05.2013 advised to carry out the proceedings as per Rule 14 of CCS (CCA) Rules. Disciplinary authority considering the representation of the applicant, existing Rules and Procedure, advice of the DOP&T, treated the report of the HLC as investigation report and initiated proceedings as per Rule 14. Accordingly, charge sheet as per CCS (CCA) Rules 14(4), 1965 dated 05.06.2013 was issued. After the applicant’s denial of charges, Sexual Harassment Committee/Internal Inquiry Committee (ICC) was appointed as per rules. Inquiry proceedings are underway and applicant did participate in the inquiry. Moreover, the inquiry is in the final stage.
9. It is also stated that now the applicant has filed the present OA praying that the report of the BSNL Committee HLC be treated as the final inquiry report and to quash the charge sheet. This is in contradiction of his earlier representation dated 03.06.2011. The principle of estoppel of jurisprudence has been cited stating that ‘when a person has, by his declaration, act or omission, intentionally or permitted another person to believe a thing to be true and act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing’.
10. Respondents have also stated that it is settled law by Apex Court that ordinarily, courts may not quash the charge sheet because since while issuing charge sheet, no adverse order is passed against the delinquent. After giving all the reasonable opportunities to the applicant, if the department can prove charges against the delinquent, punishment can be imposed on him. If after the inquiry, he is exonerated, he is set free. Curtailing an inquiry at this stage of issuance of charge sheet is not at all permissible. The applicant is given an opportunity to deal with the allegations made in the charge sheet. If the authority is satisfied with the explanation if any given by the applicant, authority may not proceed with inquiry. By conducting an inquiry against the applicant, the department is not taking away any of his right, much less any fundamental right. Transport Commissioner, Madras Vs. Thiru A. Radhakrishnan Moorty reported in JT 1997 (7) SC 74 has been cited in this regard.
11. Rejoinder has been filed on behalf of the applicant pressing that separate written statement has not been filed by the private respondents No. 3 & 4 and the written statement filed on 20.11.2015 could not be accepted as a reply on behalf of respondents No. 1-4. Besides, the written statement had been filed by a local level officer of the rank of Divisional Engineer (Telecom) who was not the custodian of the official records and hence present written statement could not be accepted by the Tribunal as there was nothing to show that the signatory of the written statement has been authorized to file the reply.
12. Arguments advanced by learned counsel for the parties were heard when learned counsel for the applicant narrated the background of the matter in great detail and pressed that since the HLC had given its report, as per the guidelines regarding sexual harassment cases in the work place, this report had to be taken as final and no additional charge sheet could be issued to the applicant. Learned counsel also referred to order of the Hon’ble Punjab and Haryana High Court dated 21.02.2012 in CRM-M-7503 of 2011 (O&M) decided on 21.02.2012 where the counsel for the petitioner in the case had submitted that he did not wish to press this petition and wants to withdraw the same with permission to take alternative recourse available. The victim Ms. Nupur had appeared before the Area Magistrate, Ambala Cantt and stated that she did not want to pursue the case. Learned counsel for the applicant stated that in this view of the matter, the respondent BSNL could not issue a charge sheet to the applicant on the very same issue that was the subject of the case before the Area Magistrate, Ambala. Learned counsel also referred to the notings on file No. 04-16/2010-Vig I (Annexure A-7) stating that the procedural aspect of dealing with sexual harassment cases had been totally given the go bye by the DOT and BSNL.
13. Learned counsel for the respondents drew attention to the representation of the applicant dated 03.06.2011(not on record) whereby he had raised the issue of the violation of the procedure and safeguards available to Government Servant under Article 311(2) of the Constitution. In his representation, he stated that he was not informed of the specific charges against him and was not given reasonable opportunity to defend himself. In this view of the matter, the respondents had sought the advice of the DOPT and were advised that the report of the HLC be treated as investigation report and proceedings be initiated as per Rule 14 of the CCS (CCA) Rules, 1965. As such, the charge sheet dated 05.06.2013 was issued to the applicant and inquiry proceedings were going. He also categorically stated that the provisions of Sexual Harassment of Women at Work (Prevention, Prohibition and Redressal) Act, 2013 were not being applied in the case of the applicant and the matter was only being pursued as per CCS (Conduct) Rules and CCS (CCA) Rules.
14. We have carefully considered the matter and perused the documents annexed with the OA as well as the rejoinder. It is clear from the record that an initial inquiry was held by the Sexual Harassment Committee at Ambala and since the Chairperson of this Committee was far junior than the applicant, the BSNL had directed that the matter be inquired into through a High Level Committee headed by a DDG. The applicant did not appear for the initial hearings and even when he did appear, he went into unrelated matters and did not make an effort to defend himself except to allege that the allegations had been made by Ms. Nupur at the instigation of the Union. This report (Annexure A-13) was submitted by the HLC in October, 2010. Thereafter, the applicant filed his representation dated 03.06.2011 that he had not been given adequate opportunity by the HLC to defend himself, the statement of witnesses were recorded behind his back, and he was not able to cross-examine the witnesses. In the light of the submissions, finally a decision was taken after obtaining the advice of the DOPT that the Inquiry Committee would proceed as per Rule 14 of CCS (CCA) Rules, 1965 and this inquiry is at present going on. Although representation dated 03.06.2011 is not on the record, applicant has not denied submission of this representation.
15. If the applicant had wanted that the report of the HLC should be treated as final, there was no reason for him to submit the representation dated 03.06.2011 alleging infirmities in the report. After he had raised this issue, the BSNL and DOT handled the matter appropriately and after obtaining the advice of the DOPT, directed that proceedings be carried out in the case of the charge she
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et related to the applicant under Rule 14 of the CCS(CCA) Rules, 1965. 16. Even when the hearing was going on in this OA, learned counsel for the applicant was asked as to whether he wished that in view of the findings of the HLC, the applicant be imposed appropriate penalty directly, but the learned counsel did not even want this option to be exercised. Therefore, this appears to be a case where the applicant wants to have his cake and eat it too. On the one hand, he has alleged that in the proceedings before the HLC, he was not allowed adequate opportunity to defend himself and now that he has been afforded such opportunity through proceedings being taken up under Rule 14 of the CCS(CCA) Rules, 1965, he is impugning the relevant orders, perhaps with the idea that if reliance is placed on the HLC report and punishment imposed on him in view of the findings of the HLC report dated 26.10.2010, he could at a later stage, again challenge the HLC report which would form the basis of such penalty on the plea that he had not been given adequate opportunity to defend himself. 17. Impugned notice dated 20.05.2014 (Annexure A-2) does not appear to have been issued in continuation of the impugned charge sheet of 05.06.2013. Besides, in view of the categorical statement of the learned counsel for the respondents in this regard, it is presumed that no action will be taken against the applicant regarding this notice. The issues raised in the OA regarding reference to the order of the Hon’ble High Court dated 21.02.2012 and written statement not being filed by competent officer are rejected outright. The Hon’ble High Court had allowed the applicant in the CRM to withdraw the petition with permission to take alternative recourse available as per law. 18. In view of the discussion above, we do not consider it necessary to interfere with the impugned charge sheet memo dated 01.07.2013/05.06.2013 (Annexure A-1) It is in the interest of the applicant to face the inquiry proceedings and take the opportunity available to him under Rule 14 of the CCS (CCA) Rules to defend himself. The OA is hence dismissed. No costs.