Full Judgment Text
$~40
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of decision: 20 July, 2023
+ W.P.(C) 16373/2022 & CM. APPL. 36590/2023
SURENDER SINGH ..... Petitioner
Through: Mr. Ankur Chhibber,
Advocate.
versus
UNION OF INDIA AND ORS. ..... Respondent
Through: Ms. Pratima N. Lakra, CGSC
with Ms. Vanya, Advocate.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
REVIEW PET. 185/2023
1. The respondent has filed an application under Section 114 of Code of
Civil Procedure for review of judgment dated 17.05.2023. The petitioner had
filed the writ petition with the following prayers:
“a.) Quash order dated 21.10.2022 which constituted the
Internal Complaints Committee;
b). Quash order dated 03.11.2022 rejecting the
representation of petitioner and suspension order dated
16.11.2022
c.) Direct respondent to conduct the inquiry as per
relevant provisions of Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act &
Central Civil Services (Classification, Control and Appeal)
Rules
2. The petition was disposed of by this court vide judgment dated
W.P.(C) 16373/2022 Page 1 of 11
Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
Signing Date:31.07.2023
11:53:13
17.05.2023. The operative paragraphs of the Order reads as under:-
“ 3. After hearing learned counsel for parties, it is agreed by
learned counsel for petitioner on instructions that the present
petition may be disposed of, if order dated 02.02.2023, report
of Inquiry Officer dated 21.10.2022 and charge-sheet dated
02.02.2023 are set aside and ICC may start fresh
inquiry/proceedings against the petitioner, as per the law by
giving him an opportunity to participate in the said
proceedings.
5. Accordingly, we hereby dispose of present petition by
setting aside the order dated 02.02.2023, report of Inquiry
Officer dated 21.10.2022 dated 02.02.2023 and giving liberty
that ICC shall start inquiry as per law by giving him to in the
said proceedings.
6 . Needless to say, be entitled to all his rights as provided
Central Civil Services (Classification, Control 1965.”
3. It is submitted in the Review Petition that the court had raised a
question that if the complaint is being investigated by a specifically
constituted Internal Complaints Committee (hereinafter referred to as
“ICC” ) , then why was the Charge Sheet served upon the petitioner by the
Disciplinary Authority.
4. It is submitted that Rule 14 of (CCS CCA Rule, 1965) provides that
the Complaints Committee established in each Ministry, Department and
Office, for enquiring into the complaints of sexual harassment shall be
deemed to be the Enquiring Authority for the purposes of these Rules and
the Complaints Committee shall hold the enquiry so far as practicable, in
accordance with the procedure laid down in the Rules. Therefore, even
before the enactment of POSH Act, 2013 provisions were already available
for conducting enquiry by the Complaint Committee in the Rule 14 of the
CCS (CCA) Rules, 1965.
W.P.(C) 16373/2022 Page 2 of 11
Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
Signing Date:31.07.2023
11:53:13
5. Section 11 of the POSH Act, 2013 itself provides that the enquiry has
to be conducted in accordance with Service Rules. Rule 14 of the CCS
(CCA) Rules contemplates a two-tier enquiry viz., the First-Stage
Fact-Finding Enquiry to ascertain the truth of the allegations made which is
followed by a Second Stage Enquiry by Department in which Charge Sheet
is filed and a Departmental Enquiry is conducted.
6. The petitioner has claimed that after the enactment of Sexual
Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 and framing of Rules thereunder, the Department of
Personnel and Training, Government of India vide OM dated 16.07.2015 has
incorporated this procedure of conducting a two stage enquiry. i.e. the first
stage and the second stage.
7. The petitioner has submitted that in the present case as well, on
receipt of the sexual harassment complaint dated 18.10.2022, DG CRPF
referred it to ICC in accordance with Section 4 of the POSH Act, 2013. A
Fact-Finding Enquiry (which is 1st stage enquiry envisaged under CCS
(CCA) Rules) had been conducted in which a prima facie case was made
out. Thereafter, the Department, after the approval of the Disciplinary
Authority had served Memorandum of Charges dated 02.02.2023 which is
the Second-Stage Enquiry in accordance with Section 11 of the POSH Act
read with Rule 14 of the CCS (CCA) Rules, 1965.
8. It is argued that the sole object of the Fact-Finding Committee is to
ascertain the truth before proceeding further which is for the benefit of the
petitioner. At this stage of Fact-Finding Enquiry , the petitioner is not
entitled to cross-examine the witnesses examined by the Department.
9. Therefore, the procedure followed was as prescribed under CCS
W.P.(C) 16373/2022 Page 3 of 11
Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
Signing Date:31.07.2023
11:53:13
(CCA) Rules, 1965 and applicable to the petitioner in terms of amended
Prevention of Sexual Harassment of Women at Workplace Act, 2013
(hereinafter referred to as „POSH Act, 2013‟) and the Rules framed
thereunder vide OM dated 16.07.2015. The impugned Order may therefore,
be reviewed and the Order dated 21.10.2022, constituting ICC be restored
along with the Preliminary Enquiry, in the interest of justice.
10. Submissions heard.
11. The Central Civil Services (Classification, Control and Appeal) Rules
have been enacted by the President of India in exercise of power conferred
by the proviso under Article 309 and Clause (5) of Article 148 of the
Constitution of India. Part-VI of CCS (CCA) Rules, 1965 contains the
procedure for imposing the penalties. Rule 14 of CCS (CCA) Rules
stipulates the procedure for imposing major penalties which reads as under: -
“ Rule 14 – Procedure for imposing major penalties
(1) No order imposing any of the penalties specified in
clauses (v) to (ix) of Rule 11 shall be made except after an
inquiry held, as far as may be, in the manner provided in this
rule and rule 15, or in the manner provided by the Public
Servants (Inquiries) Act, 1850 (37 of 1850), where such
inquiry is held under that Act.
(2) Whenever the disciplinary authority is of the opinion that
there are grounds for inquiring into the truth of any
imputation of misconduct or misbehaviour against a
Government servant, it may itself inquire into, or appoint
under this rule or under the provisions of the Public Servants
(Inquiries) Act, 1850, as the case may be, an authority to
inquire into the truth thereof.
Provided that where there is a complaint of sexual
harassment within the meaning of rule 3 C of the Central
Civil Services (Conduct) Rules, 1964, the Complaints
Committee established in each Ministry or Department or
W.P.(C) 16373/2022 Page 4 of 11
Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
Signing Date:31.07.2023
11:53:13
Office for inquiring into such complaints, shall be deemed to
be the inquiring authority appointed by the disciplinary
authority for the purpose of these rules and the Complaints
Committee shall hold, if separate procedure has not been
prescribed for the Complaints Committee for holding the
inquiry into the complaints of sexual harassment, the
inquiry as far as practicable in accordance with the
procedure laid down in these rules. ”
12. In the judgment of Vishaka & Ors. vs State of Rajasthan, (1997) 6
SCC 241 , the Apex court, while exercising the powers vested under Article
32 of the Constitution to enforce the fundamental rights to „ Gender Equality
and Right to live with Dignity of women ‟ bestowed under Article 14, 15,
19(G) & 21 of the Constitution of India and noting the absence of statute for
effective enforcement of these basic rights of women especially sexual
harassment at workplace, laid down a set of guidelines and norms with the
direction that they shall be strictly adhered to and shall be binding and
enforceable in law till such time the vacuum was filled and a legislation was
enacted to occupy the field.
13. The Vishaka decision was followed by Medha Kotwal Lele & Ors. vs
Union of India & Ors. (2013) 1 SCC 297 where it was explained that the
Internal Complaint Committees as envisaged by the Supreme Court in the
Vishaka judgment, shall be deemed to be the Enquiring Authority for the
purposes of CCS Conduct Rules, 1964 and the report of the Internal
Complaint Committee shall be deemed to be an Enquiry report on which the
action may be taken by the Disciplinary Authority in accordance with Rules.
14. After the passage of about 15 years from the date of verdict in
Vishaka’s case, POSH Act, 2013 was legislated on 22.04.2013 which was
notified on 09.12.2013. The Act laid down a comprehensive mechanism for
W.P.(C) 16373/2022 Page 5 of 11
Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
Signing Date:31.07.2023
11:53:13
constitution of Internal Complaint Committee (ICC), Local Committee and
Internal Committees; the manner of conducting the enquiry into the
complaint received, the duties and powers of the employer and District
Officer and penalties for non-compliance of the provisions of the Act.
15. Section 11 of the POSH Act, 2013 provides that an enquiry into
sexual harassment complaint shall be made in accordance with the
provisions of the Service Rules applicable to the respondent and where no
such exists, it shall be in the manner prescribed.
16. Rule 7 of the POSH Act, 2013 framed in exercise of the power
conferred by Section 29 of the said Act, delineates the procedure to be
followed and the manner in which to conduct the enquiry as provided under
Section 11 of the POSH Act, 2013, which reads as under :
“7. Manner of inquiry into complaint.- (1) Subject to
the provisions of section 11, at the time of filing the
complaint, the complainant shall submit to the Complaints
Committee, six copies of the complaint along with
supporting documents and the names and addresses of the
witnesses.
(2) On receipt of the complaint, the Complaints Committee
shall send one of the copies received from the aggrieved
woman under sub-rule (1) to the respondent within a period
of seven working days.
(3) The respondent shall file his reply to the complaint
along with his list of documents, and names and addresses
of witnesses, within a period not exceeding ten working days
from the date of receipt of the documents specified under
sub-rule (1).
(4) The Complaints Committee shall make inquiry into the
complaint in accordance with the principles of natural
justice.
(5) The Complaints Committee shall have the right to
terminate the inquiry proceedings or to give an exparte
W.P.(C) 16373/2022 Page 6 of 11
Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
Signing Date:31.07.2023
11:53:13
decision on the complaint, if the complainant or respondent
fails, without sufficient cause, to present herself or himself
for three consecutive hearings convened by the Chairperson
or Presiding Officer, as the case may be: Provided that such
termination or ex-parte order may not be passed without
giving a notice in writing, fifteen days in advance, to the
party concerned.
(6) The parties shall not be allowed to bring in any legal
practitioner to represent them in their case at any stage of
the proceedings before the Complaints Committee.
(7) In conducting the inquiry, a minimum of three Members
of the Complaints Committee including the Presiding
Officer or the Chairperson, as the case may be, shall be
present.”
17. The interplay between the Service Rules, the POSH Act and Rules
there under, came up on consideration in the recent Supreme Court
judgment of A ureliano Fernandes vs State Of Goa 2023 SCC OnLine SC 621
th
decided on 12 May, 2023 wherein a similar situation had arisen, where the
ICC guided by the Rule 11 of the POSH Rules conducted the Enquiry
instead of serving the Charge-sheet as contemplated under Rule 14 of CCS
(CCA) Rules, 1965. The pertinent question that arose before the Hon‟ble
Bench was whether the Enquiry conducted by the ICC stands vitiated. After
the perusal of the relevant Rules and POSH Act, 2013, it was held as under:-
“Thus, it can be seen that the journey from Vishaka’s Case
(supra) that acted as a springboard and sowed the seeds of
future legislation by structuring Guidelines to deal with the
cases of sexual harassment, blossomed into a
comprehensive legislation with enactment of the POSH Act
and Rules. At the same time, however, women centric the
Guidelines and the Act may have been, they both recognize
the fact that any inquiry into a complaint of sexual
harassment at the workplace must be in accordance with the
relevant rules and in line with the principles of natural
W.P.(C) 16373/2022 Page 7 of 11
Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
Signing Date:31.07.2023
11:53:13
justice. The cardinal principle required to be borne in
mind is that the person accused of misconduct must be
informed of the case, must be supplied the evidence in
support thereof and be given a reasonable opportunity to
present his version before any adverse decision is taken .
Similarly, the concerned employer is also expected to act
fairly and adopt a procedure that is just, fair and
reasonable . The whole purpose is to breathe reasonableness
into the procedural regime. But, the test of reasonableness
cannot be abstract. It has to be pragmatic and grounded in
the realities of the facts and circumstances of a case. When
conducting an inquiry, it is the duty of the Inquiring
Authority to proceed in a manner that is visibly free from
the taint of arbitrariness, unreasonableness or unfairness.
An inquiry that can culminate into imposition of a major
penalty like termination of service of an employee must
doubly conform to a just, fair and reasonable procedure.
Any displacement of the principles of natural justice can
only be in exceptional circumstances , as contemplated in
the proviso to Article 311(2) of the Constitution of India and
not otherwise. Wherever the rules are silent, principles of
natural justice must be read into them and a hearing be
afforded to the person who is proposed to be punished with
a major penalty .”
18. The four predominant purposes sought to be achieved by reading the
principles of natural justice into law and into the conduct of judicial and
administrative proceedings to achieve the underlying object of securing
fairness have been concisely stated by the Apex Court in the case of
Madhyamam Broadcasting Limited Vs. Union of India 2023 SCC OnLine
SC 366 decided on 05.04.2023 which are : (i) an assurance of a fair outcome
by following the procedural Rules; (ii) an assurance of equality in the
proceedings; (iii) legitimacy of the decision and decision- making authority
thereby preserving the integrity of the system and finally, and (iv)
W.P.(C) 16373/2022 Page 8 of 11
Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
Signing Date:31.07.2023
11:53:13
preserving the dignity of individuals where citizens are treated with respect
and the dignity they deserve in a society governed by the Rule of Law.
19. Coming to the fact in hand, according to the respondent, in
consonance with the CCS (CCA) Rules, 1965 it had held a Fact-Finding
Enquiry and had thereafter sought to serve the Memorandum of Charges
upon the respondent. However, as discussed above, fundamentally under
Rule 11 of the POSH Rules, the complaint itself becomes the Chargesheet,
copy of which is served upon the respondent to respond to the same. The list
of witnesses is also expected to be filed by both the parties. The evidence
necessarily has to be confined to the averments made in the complaint and
therefore, it cannot be said that while responding to the complaint,
respondent is not aware of the precise allegations against him or that a
separate chargesheet is necessarily required. The proceedings envisaged
under POSH Rule 11 is that which is followed in civil cases. The principle
of natural justice is ingrained in the procedure as provided in Rule 11.
20. Furthermore, as held in the case of A ureliano Fernandes (supra), the
ICC is not bound to strictly follow the step-by-step procedure as has been
stipulated in Proviso 2 of Rule 14(2) of CCS (CCA) Rules, which permits
the Committee to inquire into the sexual harassment complaint ‘as far as
practicable in accordance with the procedure laid down in the Rules’ .
The intent and purpose of the proviso is that the procedure required to be
adopted for conducting an enquiry into the complaint of sexual harassment
that can lead to imposition of major penalty under the Rules, not only be
fair, impartial and aligned, particularly to ensure the adherence to the
principles of natural justice during an enquiry, but also that the spirit behind
the “ due process ” should never be suppressed or ignored. Even in the
W.P.(C) 16373/2022 Page 9 of 11
Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
Signing Date:31.07.2023
11:53:13
absence of a statute or the Rules prior to 2013, the principles of natural
justice are the very essence of any decision-making process by a judicial
authority. By inserting the Proviso to Rule 14(2), a balance between the
rights of the victim of sexual harassment and all the delinquent employee as
far as practicable, has been calibrated. However , the “fairness in the
procedure” , at the same time cannot be given a go by in the interest of both
the parties.
21. The facts in the present case are pari materia to the case of the
ureliano Fernandes (supra)
A wherein the respondents have conducted a
Fact-Finding Enquiry which was essentially not required while enquiring
into the sexual harassment complaint. The Memorandum of Charge is also
not required to be framed and served by the Disciplinary Authority. Rather,
the issues may be crystallized by the ICC before commencing the evidence.
Since the ICC is yet to commence its proceedings and record the evidence, it
can frame the issues on its own and does not require Memorandum of
Charges from the Department for further enquiry into the complaint.
Therefore, there is no infirmity in the impugned order dated 17.05.2023
except the correction that the Order dated 21.10.2022 constituting the
Internal Complaint Committee is not set aside but the fact finding report and
the charge-sheet dated 02.02.2023 is hereby set aside. The order dated
17.05.2023 may be read accordingly:-
“ Accordingly, we hereby dispose of present petition by
setting aside the Fact-finding Inquiry Report dated
18.11.2022 and Charge-sheet dated 02.02.2023 and giving
liberty that ICC shall start a fresh inquiry on the complaint
against the petitioner, as per law by giving him opportunity
to participate in the said proceedings”
W.P.(C) 16373/2022 Page 10 of 11
Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
Signing Date:31.07.2023
11:53:13
22. No further interference is warranted. Review Petition is accordingly
disposed of.
(SURESH KUMAR KAIT)
JUDGE
(NEENA BANSAL KRISHNA)
JUDGE
JULY 20, 2023/AT
W.P.(C) 16373/2022 Page 11 of 11
Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
Signing Date:31.07.2023
11:53:13