Delhi High Court
R.K. Shivdasani vs Union Of India And Anr. on 1 July, 2019
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) 898/2006
R.K. SHIVDASANI ..... Petitioner
Through: Mr. S. K. Gupta and
Mr.Vikram Singh, Advs.
versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Mr. Ripu Daman
Bhardwaj, CGSC with
Mr. T. P. Singh, Adv. for
R-1/UOI Mr. L.R.
Khatana, Adv. for R-2, 3
& 5 to 8
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
% JUDGMENT
01.07.2019
1. The travails of the petitioner, in the present case, commenced
with the addressing, by Ms. Bimla Sharma, an employee of the Export
Inspection Council of India (EIA) - where the petitioner was, at the
time, working as Deputy Director (Vigilance) - of a complaint, dated
3rd February, 1999, the English translation of which reads thus (as
reproduced in the order, dated 20th April, 1999 in CM No. 1805/99
and 2380/99 in CW 1238/99, passed by this Court):
"I beg to submit that on 2/2/99 at 3.30 p.m., I went to
Deputy Director Shri R.K. Shivdasani's cabin to make a
phone call. Then he said "Bimla, you are looking very
beautiful today". Where is your programme to go? I have
sufficient currency notes today. You may come to any
hotel wherever you like. These type of words he has said
so many times. The other obscene words which he
uttered, I cannot write. On that time, Sh. N.K. Premi was
sitting in his cabin who told him that there are orders of
the Supreme Court. You cannot say such words to any
lady, but he (R. K. Shivdasani) did not stop any
continued to speak too much. At that time, I came out. I
will request you to take necessary action in the matter
and kindly provide me security."
2. The above complaint resulted, in its inexorable course, to the
issuance, to the petitioner, of a chargesheet, dated 23rd March, 1999,
proposing to hold a disciplinary enquiry, against him, under Rule 11
of the Export Inspection Agency Employees (Classification, Control
and Appeal) Rules, 1978 (hereinafter referred to as "the CCA Rules"),
and calling for the response of the petitioner thereagainst. The
chargesheet contained a single Article of Charge, the Statement of
Imputation of Misconduct, in respect of which, read thus:
"Shri R.K. Shivdasani, while functioning as Deputy
Director, Export Inspection Agency-Delhi, misused his
official position and indulged in a gross immoral act
subversive of discipline inasmuch as, he misbehaved
with and sexually harassed a female subordinate
employee, namely Smt. Bimla Sharma, Steno. Gr.I. on
2.2.1999 when she entered the office cabin of Sh.
Shivdasani for making a phone call at about 15.30 hrs.
When Smt. Bimla Sharma went to the cabin of Sh.
Shivdasani to make a phone call, Sh. Shivdasani told her:
"fcEkyk rqe vkt cgqr lqUnj yx jgh gks- dgk¡ tkus
dk izksxzke gS \ esjs ikl vkt dkQh uksV gS ftl Hkh
gksVy eas pkgks pyks- ("Bimla, you are looking very
beautiful today. What is your program? I am
carrying a lot of money, we can go to any hotel of
your choice."
At that point of time, another employee of EIA-Delhi,
Sh. N.K. Premi, Office Assistant was also sitting in the
cabin of Shri. Shivdasani. Shri. Premi told Shri.
Shivdasani that "fd lqizhe dkVZ ds vkns"k gS- vki fdlh
efgyk dks ,sls "kCn ugh cksy ldrs-" ("the Supreme Court
has directed that you cannot use such words with any
woman.") but, Shri. Shivdasani paid no heed and carried
on misbehaving and using the sexually coloured remarks
with Smt. Bimla Sharma with a sinister request for sexual
favours. Smt. Bimla Sharma left the cabin in disgust and
reported the matter of her sexual harassment by Shri.
Shivdasani to the office as well as to the President of
Delhi Region Export Inspection Employees' Association,
New Delhi vide our letter dated 3.2.1999, in order to
protect the dignity and escape from victimisation. She
also stated therein that ",sls "kCn oks dbZ ckj dg pqds gS
vkSj tks mUgksua s nwljs v"yhy "kCn cksys gSa oks esa fYk[k ugha
ldrh-" ("he has used such words on several locations,
and I cannot reproduce the other vulgar words that he has
used.") A protest was lodged by the Association against
the sexual harassment of Smt. Bimla Sharma by Sri
Shivdasani vide letter dated 3.2.1999. The unwelcome
sexual advances of Shri. Shivdasani tantamount to an
attack at the dignity of the woman and tarnished the
image of EIA-Delhi."
The chargesheet alleged that the above alleged act, of the petitioner,
contravened the provisions of Rule 3(1)(i), (ii) and (iii) of the Central
Civil Services (Conduct) Rules, 1964 [hereinafter referred to as "the
CCA (Conduct) Rules"], as applicable to the employees of the EIA.
3. At this stage, the petitioner was sought to be transferred out of
Delhi, against which he moved this Court, by way of C.W. 1238/99
[R. K. Shivdasani v. Export Inspection Agency (Delhi)]. Vide order
dated 20th April, 1999, this Court stayed the order of transfer of the
petitioner, expressing a prima facie view that it had been issued on
extraneous considerations. A reading of the said order also discloses
certain prima facie observations, by this Court, regarding the validity
of the enquiry proceedings, and the charges levelled, against the
petitioner, therein, as well. This Court also opined that the EIA had
failed to bring the case within the parameters laid down by the
Supreme Court in Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
The writ petition highlights the fact that no counter-affidavit was filed,
by the EIA, despite the specific direction of this Court. It may be
noted, here, that, as the order of transfer, which was impugned in
C.W. 1238/99 was, subsequently, modified, the petitioner withdrew
the writ petition on 17th January, 2002.
4. The writ petition avers, further, that, on 10th May, 1999, Smt.
Bimla Sharma also complained to the Vigilance Cell of the Delhi
Police which, after an enquiry, closed the matter on 19th July, 1999.
5. It is further averred, in the writ petition, that, on 24th December,
1999, the petitioner addressed a communication, to the EIA, seeking
certain documents, to defend himself against the charge against him.
The said communication included, apparently, a request to the IO that
the attendance register of the Administrative Section of the EIA, for
the month of February, 1999, be kept in safe custody. The writ
petition does not condescend, however, to place, on record, the said
communication dated 24th December, 1999.
6. On 28th December, 1999, the petitioner addressed a
communication to the Joint Director in the office of the EIA, who had
been designated as the Inquiry Officer (IO) to enquire into the charge
against the petitioner, in which he submitted that his request, vide
letter dated 24th December, 1999, addressed to the IO (which, too, is
not on record), to allow inspection of the prosecution documents, had
not evoked any response. Despite this, the petitioner annexed, with the
said letter, a list of documents, which he requisitioned in order to
enable him to defend himself against the charge levelled against him,
by way of a tabular statement, which may be reproduced, for ready
reference, thus:
"List of Additional Defense Documents
S. Documents Custodian Relevancy
No.
1. CVC circular CVC/ Vigilance To apprise about
Memo No. Cell EIA the conduct of the
1/15/65 - coord inquiry
dt. 20.7.1965
2. MHA Circular Ministry of Home To apprise
regarding Affairs (DOPT) regarding
procedure to be procedure to be
followed after followed w.r.t
the recording of statement of
statement of the witnesses.
witness GICS
Dept. Of
Personnel &
AROM No.
134/775/AVD 1
dt. 1.6.1976
3. Supreme Court's Registry of To apprise about
order duly Supreme Court of the orders of
attested by India Hon'ble Supreme
Registry of Court w.r.t.
Supreme Court present inquiry
as referred by proceedings
Mr. N.K Premi,
Prosecution
witness
4. Compliance EIA Delhi/ Addl. To establish and
Report of the Director EIA prove that the
orders as Delhi orders, if any, as
referred to at Sr. referred to Sr. No.
No. 3 above. 3, whether were
complied with or
not.
5. EIA D(Q/C) EIA Delhi/EIA To establish that
conf/99/7426 dt. Delhi present DRA is
5.2.99 regarding outcome of the
action taken / conspiracy, as I
follow up action had proposed
on my report action against
w.r.t. complaint certain EIA, Delhi
of Mr. P.K officials in my
Chawla, clerk report
grade 1 and Mr.
Jai Bhagwan,
Lab assistant
grade 1 against
Mr. S.K Saxena
Asst. Director in
connection with
processing of
their medical
bills
6. GSP ledger in GSP Section EIA To establish that
particular page Delhi present DRA is
31 for the month revengeful act as I
of Sep-Oct 98 had pointed out
for deposit gross negligence
holders of GSP on the part of
Certificate certain EIA
seekers employees
7. RICE ledger in Inspection Wing To establish that
particular page EIA Delhi present DRA is
no. 55 onwards revengeful act in
for the month of collision with Ms.
April'98 Bimla Sharma by
onwards for certain employees
deposit holders of EIA Delhi as I
of Rice had pointed out
Exporters gross negligence
on the part of
certain EIA
employees
8. DD (RKS) EIA To establish that
correspondence Delhi/Mr.K.J. present DRA is
w.r.t. GSP Srivastava Addl. revengeful act as
&Rice ledger Director, EIA had pointed out
with DD (RKS) Delhi / Mr. Rajiv gross negligence
& Addl. Director Kudesia the then on the part of
KJS DD, GSP and certain EIA
Rice Section employees
from Jan'99 involving revenue
onwards loss to the
department.
9. My notes dt. EIA Delhi/ Addl. To establish that
6.3.96, 8.3.96, Director EIA present compliant
16.3.96, 27.3.96 Delhi / DD (RKS) by Ms. Bimla
regarding refusal for his personal Sharma,
to attend official copy stenographer is
work by Ms. revengeful Act to
Bimla Sharma as teach DD (RKS) a
part of her lesson for making
official duties complaint against
her
10. Delhi Region General Secretary To apprise about
Export DREIEA/ the contents of the
Inspection DREIEA office letter in connection
Employee with present DRA
Association
letter dt 12.2.99
addressed to Mr.
R. P. Aggarwal
Joint Secretary
M/o Commerce
by Mr. R.N
Prasad, DREIEA
11. Minutes of DREIEA Office To apprise about
meeting /JS (RPA) M/o the deliberations of
DREIEA Commerce the meeting by the
members had executive
with Mr. R.P members with JS
Aggarwal, Joint (RPA)
Secretary M/o
Commerce on
5.2.99 as
referred in their
letter dt. 12.2.99
at Sr. no. 10
above
12. EIA C.C.A EIA Delhi To apprise about
Rules the latest EIA
CCA Rules |as
applicable to me
13. Correspondence Delhi Police/ EIA To apprise about
file w.r.t. Delhi/EIA Delhi the nature of the
complaint of Ms. complaint and
Simla Sharma outcome thereof
between
EIAEIA and
Delhi Police by
EIA Delhi
14. VITNL report 47 Divisional To establish that
dt. 17.6.99 and engineer, MTNL the statement
dt. 2.7.99 on Karol Bagh given by Ms.
status and Exchange/ Delhi Bimla Sharma to
working of Police/ DD (RKS) police is false and
telephone mischievous as far
number 5729835 as working status
available on of telephone
adjacent table of number of
Ms. Bimla 5729835 is
Sharma concerned as on
2.2.99
15. Counter affidavit EIA Delhi/ Mr. To establish that
on behalf of the K.J Srivastava the respondents
respondents Addl. Director, have tried to
(EIA Delhi) and DD (RKS) mislead the H'able
Mr. K.J court on the
Srivastava, subject matter
Addl. Director
(EIA Delhi) to
H'able High
Court filed by
respondents in
WP 1238/99
and reed by the
petitioner (DD
RKS) on 16.8.99
16. Copies of Ms. Director I & Q/C To establish that
Bimla Sharma's / EIA Delhi / Ms. Bimla Sharma
complaints to MOC/ NCW is habitual In
EIA Delhi reed Delhi and Central making false,
on 4.2.99 at District Delhi fabricated,
diary no. 1682, Police mischievous
dt. 24.4.99, dt. complaints out of
6.9.99 and to revengeful attitude
Delhi Police dt. towards DD (RKS)
10.5.99 along
with it's
enclosure
17. Copy of H'able Publisher To apprise H'able
Supreme Court Judgements inquiry officer on
judgement dt. Today, D-1/ G.F- the continuation/
6.4.99 in the 1, Virat Bhawan, otherwise of the
matter of Capt. Commercial present inquiry
M. Paul Complex, Dr. proceedings
Anthony Vs. Mukherji Nagar,
Bharat Cold Delhi - 110009/
Mines Ltd. Registry of
Delivered by Supreme Court of
H'able bench of India/ DD (RKS)
Mr. Justice S. for copy of
Saghr Ahmad publication
and Mr. Justice "Judgement
V.N Khare Today"
18a. Copy of H'able AIR 1968 SC To apprise and
Supreme Court 372/1968 establish the fact
judgment in the SCR/224 Registry about continuation
matter of Tarak of Supreme Court of the present
Nath Ghosh Vs. of India DRA proceedings,
State of Bihar on as this judgment is
Police having direct
Investigation for bearing on the
complaints present
processed / proceedings
likely to be
processed by
Police.
18b. Copy of H'able AIR 1961 SC To apprise and
Supreme Court 1245/ ILR 1961 establish the fact
judgement in the ALL 167/1961 2 about continuation
matter of LLJ 116/ Registry of the present
Jagannath of Supreme Court DRA proceedings,
Prasad Vs. State of India as this judgment is
of UP on Police having direct
Investigation for bearing on the
complaints present
processed / proceedings
likely to be
processed, by
Police.
|
19. Medical IDD (RKS) To establish that
prescription of Ms. Bimla Sharma
DD (RKS) dt. has made false and
4.9.99 and X mischievous
Ray reports complaint dt.
thereof dt. 4.9.99 6.9.99 against DD
of Safdurjang (RKS)
Hospital
20. EIA/EIA EIA/ EIA To apprise about
Employees the service, appeal
Service, appeal and control rules
and control rules
21. National National To apprise about
Commission for Commission for the provision of
women Act 1990 Women, Deen the rules,
and guidelines/ Dayal Upadhyay applicability,
instructions Marg. Delhi compliance by the
issued by /Govt. Publication complaint by the
National Division complainant and
Commission for department
Women on
sexual
harassment
22. Protection of National To apprise about
Human Rights Commission for the provision of
Commission Act Women, Deen the rules
1993 Dayal Upadhyay
Marg, Delhi
/Govt. Publication
Division
23. MHA Ministry of Home To apprise for
notification No. Affairs DOPT avoiding hardship
108/54 to charged officer
Establishment
(A) dt. 20.11.54
regarding
interpretation of
Rule 23
24. D.G P&T D.G P&T To apprise whether
circular the present
105/26/81 proceedings are in
Vigilance III dt. order or not
30.3.1981
regarding that 2
penalties cannot
be imposed for
same offence
25. Letter dt. Addl. Secretary To establish that
21.12.99 of Ms. M/o Commerce/ Ms. Bimla Sharma
Bimla Sharma Chairperson EIA/ is interfering with
addressed to Director/ Addl. proceedings and or
chairperson EIA Director EIA in appointment of
& Addl. Inquiry officer
Secretary M/o which is against
Commerce the conduct rules
regarding
change of
present inquiry
officer
26. Daily attendance EIA Delhi/ Addl. To establish
record of all Director EIA absence /presence
those employees Delhi, DD Admin of the employees
in particular of EIA Delhi in particular of Ms.
Ms. Bimla Bimla Sharma
Sharma, stenographer grade
stenographer 1 on 2.2.99
grade 1, working
/ having their
seat in
administration
section during
the month of Feb
27. Daily Inquiry officer/ To establish that
proceeding page Director 1 & Q/C/ threats were reed
no. 11 in the DD (RKS) as PO during proceedings
matter of by DD (RKS) that
departmental it will not be good
inquiry for him if he does
conducted not take up JD
against Mr. M.L (MLG)'s DRA
Gupta casually
28. DREIEA letter Praveen Sakhuja To establish that
dt. 2.2.99 from Vice President present DRA is
Mr. Praveen DEEIEA / DD revengeful act as
Sakhuja Vice (RKS) (the then DD (RKS) was
President to the DD Vigilance) requested by Mr.
then DD Praveen Sakhuja to
(Vigilance) investigate certain
along with its gross negligence
enclosure on the part of
certain EIA
employees in
connection with
loss of DD/
cheques worth
more than one lakh
of rupees
29. Blank EIA Delhi DD (RKS) To establish that
receipts bearing the present
no. 003 and 004 complaint by Ms.
of book number Bimla Sharma is a
17183 seized revengeful act to
during official prevent DD (RKS)
round to GSP from initiating any
section by DD action against the
(RKS) as DD supporters of Ms.
vigilance Bimla Sharma
against whom DD
(RKS) was about
to initiate action as
DD Vigilance
30. DD (RKS) letter DD (RKS)/ To establish that 9
dt. 15.2.99 General Secretary members of the
addressed to DREIEA Secretary
General executive
Secretary committee of
DREIEA and his DREIEA were not
reply dt. 20.2.99 aware about the
in connection letter dt. 3.2.99
with complaint and 12.2.99 of Mr.
of Ms. Simla R.N Prasad
Sharma President of the
association and to
establish that Mr.
R.N Prasad has
written these
letters out of
revengeful act
against DD (RKS)
31. Recorded audio DD RKS To establish that
conversation Ms. Bimla
between DD Sharma, has made
RKS and various the complaint out
employees of of revengeful act,
EIA Delhi in conspiracy and
on instigation of
certain individuals
The petitioner also submitted, with the said letter, a list of thirteen
officers, whom he desired to cite as defense witnesses.
7. The IO responded to the above communication, vide a letter,
which is, apparently, wrongly dated 7th December, 1999. Of the 31
documents requisitioned by the petitioner, vide his letter dated 28th
December, 1999 supra, for his defence, the IO "admitted" the
documents at S. Nos 1, 2, 10, 11, 12, 13, 14, 16, 17, 18(a), 18(b), 20,
21, 22, 23, 24, 26 and 28. The request for the documents at (i) Sr. Nos
3 and 4 was rejected on the ground that the justification cited by the
petitioner did not indicate the Case No, etc., (ii) S. Nos 5, 25 and 27
was rejected on the ground that the justification provided by the
petitioner was not relevant to the charge against him, (iii) S. Nos 6, 7,
8, 29 and 31 was rejected on the ground that the justification provided
by the petitioner was vague, (iv) S. No. 9 was rejected on the ground
that the person, to whom the notes referred to, had been submitted,
was not mentioned and the period stated was of 1996, which was not
relevant to the present case, (v) S. No. 15 was rejected on the ground
that the matter was sub judice, (vi) S. No. 19 was rejected on the
ground that the complaint, referred to by the petitioner, was dated 6 th
September, 1999, which was not being dealt with by the IO and (vii)
S. No. 30 was rejected on the ground that it involved an internal
matter of the employees Association. The IO also allowed seven, out
of the thirteen defense witnesses cited by the petitioner.
8. Proceedings, in the enquiry against the petitioner, commenced
on 24th August, 2000. Para 33 of the writ petition acknowledged that,
"as per the brief submitted by the Presiding Officer (PO) the following
documents were handed over to the petitioner:
a. Letter from Ms. Geeta Luthra dated 6.5.2000 in response
to letter dated 6.2.2000 from the Joint Director and inquiry
Officer,
b. EIA Delhi note No: EIA:DEL:ADMN:GEN: dated
30.12.99 of Shri. G.C. Ghosh Section Officer [page 1, 2 & 3],
c. Attendance register of officers of EIA Delhi for the month
of February 1999 (5 pages),
d. EIA note No: EIA: D(Q/C): CCRKS: 2000:5451 dated
5.2.99 [3 pages],
e. Letter No: EIA:DEL: DD[I/C]:CONF-99-2000:2368
dated 27.1.2000 of DD [KC],
f. Letter No: EIA:D{Q/C}:TSNRKS:2000:4879 dated
6.1.2000 of JD [TSN] [pages 1 & 2] and
g. Export Inspection Council Employees Classification &
Appeal Rules, 1978 [15 pages]."
9. Proceedings, in the enquiry against the petitioner, took place on
27th March, 2001 and 28th March, 2001. The petitioner did not attend
the proceedings on either of the said dates, purportedly on the ground
that he had not been provided the documents sought by him for his
defense.
10. Inquiry proceedings took place, thereafter, on 17th April, 2001,
24th April, 2001 and 5th May, 2001. The petitioner remained absent on
the first two dates, i.e. on 17th April, 2001 and 24th April, 2001. He
presented himself before the IO on 5th May, 2001, and tendered a
representation. In the said representation, he pointed out that the
attendance register of Smt. Bimla Sharma, for the month of February,
1999, had not been provided to him and referred, in this context, to
EIA Delhi Note No. EIA/DEL/ADMN/GEN/99 dated 30th December,
1999, which observed that there was no attendance register of staff of
the Administration Section for the month of February, 1999, as
required by the petitioner. Expressing chagrin at this fact, especially
as he had, vide his letter dated 11th September, 2000 supra, requested
that the Attendance Register be preserved, the petitioner requested the
IO not to proceed with the enquiry, pending disposal, by this Court, of
C.M. No. 2304/2001, filed by the petitioner in C.W. 1238/1999. He
also relied, in this context, on the judgment of the Supreme Court in
Deepak Puri v. State of Haryana, (2000) 10 SCC 373.
11. On 4th June, 2001, it was submitted, by the PO, to the IO, that
the process of verification of the prosecution documents was over,
whereas the petitioner contended, per contra, that the said process was
yet incomplete. Besides, he submitted, the documents required, by
him, for his defense, had yet to be provided to him. The IO noted that
the submission, dated 5th May, 2001, of the petitioner, was still under
consideration, and adjourned the inquiry to 3rd July, 2001.
12. On 3rd July, 2001, the IO queried, of the petitioner, as to
whether he desired to cross-examine the prosecution witnesses, to
which the petitioner responded that the verification of the prosecution
documents was not yet over, and that the only document provided to
him, among the documents sought for, by him, to defend the charge,
was the complaint, dated 3rd February, 1999, of Smt. Bimla Sharma.
Even the said complaint, he submitted, had not yet been provided in
original. The PO submitted that he had nothing further to add, beyond
the submissions noted in the record of personal hearing dated 4 th June,
2001.
13. The IO, in the said record of proceedings dated 3rd July, 2001,
rejected the representation, dated 5th May, 2001, of the petitioner,
holding that the petitioner had already been provided all the
documents which had been made available to the IO. The petitioner
protested, submitting that he had only been given seven documents on
24th August, 2000, of which the only document, figuring in the list of
documents sought for, by him, with his letter dated 24 th December,
1999, was the CCA Rules. The petitioner also drew attention to the
fact that, in his letter dated 27th January, 2000, addressed to the
Additional Director, EIA, the Deputy Director-in-charge had
acknowledged that supplying the correspondence file, to the
petitioner, could weaken the case of the EIA in the Court. The
petitioner, therefore, reiterated his request for being provided the
remaining documents relied upon by the prosecution, as well as the
defence documents sought by him. The IO, however, closed the
enquiry proceedings, citing the delay had been occasioned therein.
The PO and the petitioners were directed to submit their respective
written briefs.
14. As directed by the IO, briefs were filed by the PO as well as by
the petitioner. Reference has been made, in the said briefs, to the EIA,
defending the charges against the petitioner, as the "prosecution",
though the proceedings were civil in nature. For the sake of
convenience, therefore, this judgment, too, uses the same expression.
15. The PO contended, in his brief dated 23rd July, 2001, that the
listed documents, filed by the prosecution (actually, the management),
had been inspected by the petitioner on 29 th May, 2000, and a
certificate, to the said effect had also been obtained by the then PO.
Apropos the request for additional documents, for his defense, as
submitted by the IO vide letter dated 24th July, 2000, the PO
contended that the said letter had been taken on record by the IO, but
no instructions were given, thereon, by the IO to the PO. The written
brief filed by the PO further sought to point out that Smt. Bimla
Sharma had identified her complaint and confirmed the details therein,
during the proceedings held on 27th March, 2001. Further evidence, in
favour of the Management, it was pointed out, had been led by the
examinations-in-chief of Sh. N. K. Premi and Sh. R. N. Prasad,
testifying as PW-2 and PW-3 respectively. The brief of the PO further
sought to point out that, even on 3rd July, 2001, the petitioner again
requested for providing of the documents required for his defense, and
refused the opportunity to examine the prosecution witnesses.
Averring that all documents, which were available to the PO, had been
provided to the petitioner, the written brief of the PO argued that the
allegation of Smt. Bimla Sharma was borne out by the testimonies of
Sh. N. K. Premi and Sh. R. N. Prasad and that, in view of the fact that
these two witnesses were eyewitnesses to the incident, no further
evidence was required to be produced by the prosecution. Inasmuch as
the petitioner, despite having been given an opportunity, by the IO, to
examine the prosecution witnesses, chose not to do so, the brief of the
PO urged that the complaint of Smt. Bimla Sharma stood proved. The
PO further sought to discountenance the submission, of the petitioner,
that requisite documents had not been supplied to him, by contending
that the enquiry against the petitioner was based on the complaint of
Smt. Bimla Sharma, for sexual harassment, which was confirmed by
an eyewitness. It is contended, in conclusion, that "the CO (i.e. the
petitioner) could not bring any document or any defence witness
during the proceedings of enquiry".
16. The petitioner submitted, per contra, in his written brief before
the IO, that he had been unjustifiably denied the documents, which
were required, by him, to defend the allegations against him. He relied
on the communication, dated 27th January, 2000 supra, wherein it was
acknowledged that, if the requisite correspondence file was supplied
to the petitioner, it could weaken the case of the EIA before the Court.
The petitioner emphasised the fact that the Attendance Register of
Smt. Bimla Sharma was a document of vital importance and that
withholding the said document, from him, prejudiced his defense. He
also complained that he had not been afforded an opportunity to cross-
examine the prosecution witnesses. The delay, he urged, was on the
part of the prosecution in failing to provide the documents within
time, despite their having been allowed by the IO. There had,
therefore, he urged, been fundamental violation of the principles of
natural justice. He further contended that the charge against him was
mala fide, at the instance of Mr. S.K. Saxena, the then Assistant
Director (Admn.), EIA, and his juniors. He submitted that, till that
date, he had not been provided the documents sought by him, in
particular the letter, dated 3rd February, 1999, of Smt. Bimla Sharma,
which constituted a complaint against the petitioner. In such
circumstances, the petitioner submitted that no allegation of sexual
harassment of Smt. Bimla Sharma could be fastened on him. In fact,
he submitted, Smt. Bimla Sharma was absent from duty on 2nd
February, 1999, on which date the incident of sexual harassment was
alleged to have taken place. It was for this reason, submitted the
petitioner that Smt. Bimla Sharma did not choose to apprise the
superior officers, who were available in the office, merely a phone call
away. Equally, he submitted, it was inexplicable as to why Mr. Premi,
allegedly a witness to the incident, did not report the incident to the
superior officers. He pointed out that the complaint of Smt. Bimla
Sharma had also been investigated by the Vigilance Cell of the Delhi
Police, who examined and interrogated the petitioner. He submitted
that, in the course of the said investigation, the statements, of Mr. K.
K. Kharbanda, Section Officer as well as Mr J. P. Maikhuri, an
outside and independent eyewitness, who were present in the
petitioner's cabin at that time, had been recorded, and that both the
said witnesses had confirmed that no such incident had occurred in the
petitioner's cabin at 3:30 p.m. on 2nd February, 1999, as alleged by
Smt. Bimla Sharma. He pointed out that, as the Investigating Officer
of the Delhi Police found no truth in the complaint of Smt. Bimla
Sharma, the complaint was closed on 19th July, 1999. He submitted
that the matter was also referred to the Police Commissioner by the
Director [I & Q/C], through the Disciplinary Authority, i.e. the
Additional Director, vide letter dated 3rd June, 1999, and that,
consequent thereupon, the SHO, Karol Bagh PS, had also thoroughly
investigated the matter, but found no prima facie case against the
petitioner. It was, apparently, for this reason, contended the petitioner
that the EIA was withholding, from the petitioner, the correspondence
file between the EIA and the Delhi Police. The petitioner further
pointed out that the alleged deposition of Smt. Bimla Sharma, as PW-
1, before the IO, was unsigned by her, and bore the signatures only of
the IO and the PO. It did not, therefore, have any evidentiary value
and could not be relied upon or taken on record. Apropos the evidence
of Mr. Premi, the petitioner submitted that he had not elaborated as to
the unparliamentary words allegedly uttered by the petitioner, or
explain why, even after the petitioner so behaved, Smt. Bimla Sharma
continued to remain in his cabin, without complaining to any higher
authority. With respect to PW-3 Mr. R.N. Prasad, the petitioner
submitted that he had deposed regarding forwarding of the complaint
of Smt. Bimla Sharma, and questioned as to how Mr. Prasad could at
all testify to the correctness thereof, especially as he was posted in an
entirely different office, located in a different building. The petitioner
also provided a tabular response to the brief of the PO. He reiterated
that Smt. Bimla Sharma was absent from office on 2 nd February, 1999.
With respect to the submission, of the PO, that no direction was
issued, by the IO, for providing documents to the petitioner, the
petitioner pointed out that, in fact, the said direction was issued on
more than one occasion. The petitioner also complained against non-
compliance, by the EIA, with the guidelines for dealing with such
cases, as set out in the well-known judgment of the Supreme Court in
Vishaka (supra).
17. The IO issued his Inquiry Report, which was furnished to the
petitioner, by the EIA, under cover of Memorandum dated 11 th March,
2002, affording the petitioner an opportunity to represent against the
findings of the Inquiry Report. It was noted, in the Inquiry Report,
that the documents listed with the chargesheet were handed over to the
PO on 11th May, 2000 and were inspected by the petitioner on 29 th
May, 2000. Though the Inquiry Report notes the fact that, according
to the petitioner, the original complaint, dated 3rd February, 1999, of
Smt. Bimla Sharma had not been provided to him, the IO also finds
that, deposing as PW-1, Smt. Bimla Sharma stated that the contents of
the letter, dated 3rd February, 1999 were correctly written and bore her
signatures. Moreover, he finds, the said complaint was authenticated
by PW-2 and PW-3. Dismissing the submissions of the petitioner as
"extraneous", and "not subject matter of enquiry", the IO notes that
the petitioner did not cross examine the prosecution witnesses, nor
"introduced his witnesses in the proceedings", and limited himself to
questioning the prosecution documents. The objection, of the
petitioner, that the statement, allegedly made by Smt. Bimla Sharma
during inquiry proceedings, deposing as PW-1, did not bear her
signatures, the IO chose, instead, to fault the petitioner for not raising
this issue on 3.7.2001 the last date of hearing", and also for not
intimating, in writing, to the IO, of the said fact. On the ground that
the enquiry was based on the complaint of Smt. Bimla Sharma, which
was confirmed, by her, deposing as PW-1, as genuine, and had also
been authenticated by PW-2 and PW-3, none of whom the petitioner
chose to cross-examine, the IO held that the petitioner had
contravened the provisions of Rule 3(1) (i), (ii) and (iii) of the CCS
(Conduct) Rules.
18. Vide his letter dated 30th March, 2002, the petitioner responded
to the aforesaid Inquiry Report of the IO, contending as under:
(i) Sexual harassment of women at the workplace being
specifically covered by Rule 3C of the CCS (Conduct) Rules,
the invocation, against the petitioner, of Rule 3(1) of the said
Rules was unjustified and illegal.
(ii) The chargesheet, issued to the petitioner, was "in total
violation of Rule 3C of the CCS (Conduct) Rules."
(iii) The petitioner was deemed to have retired w.e.f. 17th
February, 2001, on which date he sought voluntary retirement.
He was, therefore, covered by the CCS (Pension) Rules, 1972.
(iv) The petitioner had disputed the veracity of the copy of
the complaint, dated 3rd February, 1999, of Smt. Bimla Sharma,
as provided to him. The original of the said document was,
however, never made available.
(v) The Inquiry Report did not deal with the submissions
advanced by the petitioner in his defense statement dated 4th
August, 2001, and expressed no disagreement with the said
submissions.
(vi) The inquiry had, therefore, been held in the absence of
the original prosecution documents. This was, admittedly,
because, if the said documents were provided to the petitioner,
the case of the EIA, against the petitioner, pending before this
Court would get weakened, as was confirmed vide the letter
dated 27th January, 2000, of the EIA supra.
(vii) In the absence of the original prosecution documents, and
the documents sought by the petitioner for his defence, it was
not possible for the petitioner to cross-examine any of the
prosecution witnesses.
(viii) In such circumstances, the IO was not justified in closing
the inquiry on 3rd July, 2001, denying, in the process, to the
petitioner, his right to produce defence witnesses and cross-
examine the prosecution witnesses.
(ix) There was no explanation for how Mr. R. N. Prasad, who
was posted in another building, came to know about the
correctness of the complaint of Smt. Bimla Sharma, qua an
incident alleged to have taken place in the petitioner's cabin at
3:30 p.m. on 2nd February, 1999.
(x) There was wilful denial, to the petitioner, of the
attendance register of Smt. Bimla Sharma for the month of
February, 1999. This was a vital document and, in holding
against the petitioner without providing the said documents to
him, the IO infracted the principles of natural justice.
(xi) The deposition of Smt. Bimla Sharma, during the course
of the inquiry proceedings, being unsigned by her (on the 2nd
page), could not be read in evidence. This submission, of the
petitioner, which went to the root of the matter, was dismissed,
by the IO, on the tenuous ground that it had not been raised
prior to the last date of hearing.
(xii) Investigations, conducted by the Vigilance Cell of the
Delhi Police, into the complaint of Smt. Bimla Sharma, at the
instance of Smt. Bimla Sharma, resulted in the petitioner being
found entirely innocent of the allegations levelled against him.
(xiii) The petitioner had been denied an opportunity to produce
eyewitnesses, who could testify that the alleged incident of
sexual harassment had never taken place, i.e. Mr. K. K.
Kharbanda and Mr. J. P. Maikhuri. The request for producing
the said witnesses was rejected, by the IO, as not relevant,
without any reasons for so holding. These witnesses and clearly
deposed, before the Vigilance Cell of the Delhi Police, on 5 th
July, 1999, 8th July, 1999 and 1st July, 1999, to the effect that
the alleged incident of sexual harassment had never taken place.
These depositions had been placed, by the petitioner, on the
record of the inquiry, through his defense statement, but had
been ignored by the IO.
(xiv) The opportunity of producing other defense witnesses,
too, had been denied.
(xv) The petitioner had been denied access to the documents
relating to the investigations conducted by the Delhi Police,
which completely exculpated him. This was clear infraction of
the principles of natural justice, for which purpose the petitioner
placed reliance on State of M.P. v. Chintaman Sadashiva
Waishampayan, AIR 1961 SC 1623, State of U.P. v.
Shatrughan Lal, AIR 1998 SC 3038 and State of Punjab v.
Bhagat Ram, AIR 1974 SC 2335.
In the circumstances, the petitioner pleaded that he be
exonerated of the charge against him.
19. On 12th June, 2002, the request, of the petitioner, to be
permitted to voluntarily retire from the services of the EIA, was
accepted.
20. Vide order, dated 26th September, 2005, purportedly issued
under Rule 9 of the CCS (Pension) Rules, by the Hon'ble President of
India, the petitioner has been penalised with 50% cut in pension
without cumulative effect for a period of two years from the date of
his retirement.
21. Following thereupon, vide office order dated 29th October,
2005, issued by the EIA, the pension of the petitioner has been
reworked.
22. Aggrieved thereby, the petitioner is before this Court in the
present writ proceedings.
Rival Submissions
23. Mr. Gupta has advanced arguments on behalf of the petitioner,
and Mr. L. R. Khatana has advanced arguments on behalf of the EIA.
24. Mr. Gupta advances the following submissions:
(i) The impugned order of punishment applied
retrospectively. This was impermissible, as the petitioner
already stood retired on 23rd February, 2001.
(ii) There was no finding, against the petitioner, of grave
misconduct. In the absence of such a finding, punishment could
not be imposed under Rule 9 of the CCS (Pension) Rules, as
held by this Court in U.O.I. v. Dr. V. T. Prabhakaran, 2010
SCC Online Del 2478.
(iii) The impugned order of punishment was passed without
consulting the Union Public Service Commission, as required
by the proviso to Rule 9(1) of the CCS (Pension) Rules.
(iv) The PO was never asked, by the IO, to produce the
documents which were allowed, by him, vide his decision dated
7th December, 1999 supra. (In this connection, it may be noted
that, vide letter dated 6th January, 2000, the IO directed the
Deputy Director In-charge to make arrangements to produce the
documents, sought by the petitioner, before him on 13 th
January, 2000. However, it appears that the said documents
were not produced.)
(v) In this context, Mr. Gupta drew my attention to sub- rules
(11) to (13) of Rule 11 of the CCA Rules, which read thus:
"(11) The inquiring authority shall, if the Agency
employee fails to appear within the specified time
or refuses or omits to plead, require the Presenting
Officer to produce the evidence by which he
proposes to prove the articles of charge, and shall
adjourn the case to a later date not exceeding thirty
days, after recording an order that the Agency
employee may, for the purpose of preparing his
defence:
(i) Inspect within five days of the order or
within such further time not exceeding five days
as the inquiring authority may allow, the
documents specified in the list referred to in sub-
rule (3);
(ii) Submit a list of witnesses to be examined on
his behalf;
NOTE: - If the Agency employee applies orally or
in writing for the supply of copies of statements of
witnesses mentioned in the list referred to in sub-
rule (3), the inquiring authority shall furnish him
with such copies as early as possible and in any
case not later than three days before the
commencement of the examination of the
witnesses on behalf of the disciplinary authority.
(iii) Give a notice within ten days of the order or
within such further time not exceeding ten days as
the inquiring authority may allow for the discovery
or production of any documents which are in the
possession of Agency but not mentioned in the list
referred to in sub-rule (3).
NOTE: - The Agency employee shall indicate the
relevance of the documents required by him to be
discovered or produced by the Agency.
(12) The inquiring authority shall, on receipt of
the notice for the discovery or production of
documents, forward, the same or copies thereof to
the authority in whose custody or possession the
documents are kept, with a requisition for the
production of the documents by such date as may
be specified in such requisition:
Provided that the inquiring authority may, for
reasons to be recorded by it in writing, refuse to
requisition such of the documents as are, in its
opinion, not relevant to the case.
(13) On receipt of the requisition referred to in
such-rule (12), every authority having the custody
or possession of the requisitioned documents shall
produce the same before the inquiring authority:
Provided that if the authority having the custody or
possession of the requisitioned documents is
satisfied for reasons to be recoded by it in writing
that the production of all or any of such documents
would be against the Agency's interest or public
interest or security of the state, it shall inform the
inquiring authority accordingly and the inquiring
authority shall on being so informed, communicate
the information to the Agency employee and
withdraw the requisition made by it for the
production or discovery of such documents."
(vi) There was total contravention of the procedure prescribed
in sub- rules (16) to (19) of Rule 11 of the CCA Rules, too. In
fact, the IO has completely jettisoned the procedure prescribed
in sub- rules (16) to (18), and straightaway proceeded to sub-
rule (19) of Rule 11. For ready reference, sub- rules (16) to (19)
of Rule 11 of the CCA Rules:
"(16) When the case for the disciplinary authority
is closed the Agency employee shall be required to
state his defence, orally or in writing, as he may
prefer. If the defence is made orally, it shall be
recorded and the Agency employee shall be
required to sign the record. In either case, a copy of
the statement of defence shall be given to the
Presenting Officer, if any, appointed.
(17) The evidence on behalf of the Agency
employee shall then be produced. The agency
employee may examine himself in his own behalf
if he so prefers. The witnesses produced by the
Agency employee shall then be examined and shall
be liable to cross-examination, re-examination and
examination by the inquiring authority according to
the provisions applicable to the witnesses for the
disciplinary authority.
(18) The inquiring authority may, after the
Agency employee closes his case, and shall, if the
Agency employee has not examined himself,
generally question him on the circumstances
appearing against him in the evidence for the
purpose of enabling the Agency employee to
explain any circumstances appearing in the
evidence against him.
(19) The inquiring authority may, after the
completion of the production of evidence, hear the
Presenting Officer, if any, appointed and the
Agency employee, or permit them to file written
briefs of their respective case, if they so desire."
(vii) The Inquiry Report held the charge, against the
petitioner, to be proved merely on the basis of the testimony of
the prosecution witnesses. There was no discussion, even
cursory, of the defense put forward by the petitioner, far less
any analysis thereof.
(viii) The finding that the petitioner had defaulted in producing
his defense witnesses was obviously unsustainable, as no
opportunity, to produce defense witnesses, was accorded to the
petitioner.
25. Mr. Khatana, appearing for the respondent, candidly
acknowledged, the very outset, that strict compliance with the letter of
Rule 11 of the CCA Rules may not be forthcoming in the present case;
he, however, sought to submit that the spirit of the said Rule had been
followed, and that violation thereof, if any, was essentially procedural
in nature. He sought to place reliance on the judgment of the Supreme
Court in Pandit D. Aher v. State of Maharashtra, (2007) 1 SCC 445,
to contend that copies, only of documents on which the department
sought to place reliance, were required to be furnished to the charge
officer. In any case, he submitted, the documents which were allowed
by the IO were in the public domain. He sought to point out that the
petitioner attended the inquiry on all days except dates on which the
prosecution witnesses had been called. He also acknowledged that the
abrupt conclusion of the inquiry proceedings appeared to be irregular,
but sought to contend that the petitioner accepted it without protest.
By granting an opportunity to the petitioner to submit his defense
brief, Mr. Khatana would seek to urge, the IO acted in accordance
with the procedure prescribed. The principles enunciated in S. K.
Kapoor (supra), on which Mr. Gupta placed reliance, Mr. Khatana
would seek to urge, were only directory in nature. Mr. Khatana seeks,
per contra, to rely on the judgment of the Supreme Court in Apparel
Export Promotion Council v. A. K. Chopra, (1999) 1 SCC 759. In
fact, Mr. Khatana submits that the punishment imposed on the
petitioner did not operate retrospectively, as he had been sanctioned
only provisional pension. For all these reasons, Mr. Khatana would
urge, the writ petition deserves to be dismissed.
Analysis
26. Having heard learned counsel at length and consider the
material on record, I am of the opinion that the impugned order of
punishment of the petitioner cannot sustain.
27. There is a litany of precedents, starting from Taylor v. Taylor,
(1875) 1 Ch. D. 476, and travelling through the celebrated decision in
Nazir Ahmed v. King Emperor, AIR 1936 PC 253, through a catena
of judgments of the Supreme Court, till as late as Dharani Sugars &
Chemicals v. Union of India, (2019) 5 SCC 480, enunciating the
proposition that, where the law requires a thing to be done in a
particular manner, it has to be done in that manner alone or not done
at all. This rule has especial application in the case of actions
governed by statutory prescriptions and proscriptions, whether they
are to be found in plenary, or in subordinate, legislation. To wit, in the
present case, the action against the petitioner having been, avowedly,
taken under Rule 11 of the CCA Rules, the detailed and exhaustive
procedure, prescribed in the various sub-rules of the said Rule, was
necessarily required to be adhered to, while proceeding against the
petitioner. Action taken in violation of the said procedure becomes
necessarily pregnable, in law, even on that sole ground. Of course, if
the violation is only of some minor procedural stipulation, and the
violation does not result in any noticeable prejudice to the charged
officer, it may be open to the management to argue that the decision to
punish the charged officer cannot be set-aside solely on that score. In
the present case, however, there is stark and abject violation of the
procedure prescribed in sub-rules (11) to (17) of Rule 11, and the
case, clearly, is not one in which it is possible to accept the argument,
of Mr. Khatana, that the "spirit of the Rule" has been followed, though
the form thereof has not.
28. The stipulations and prescriptions contained in Rule 11 of the
CCA Rules are clear and unequivocal, and may be set out thus [insofar
as it involves sub-rules (11) to (19)]:
"(11) The inquiring authority shall, if the Agency
employee fails to appear within the specified time or
refuses or omits to plead, require the Presenting Officer
to produce the evidence by which he proposes to prove
the articles of charge, and shall adjourn the case to a later
date not exceeding thirty days, after recording an order
that the Agency employee may, for the purpose of
preparing his defence:
(i) Inspect within five days of the order or
within such further time not exceeding five days as
the inquiring authority may allow, the documents
specified in the list referred to in sub-rule (3);
(ii) Submit a list of witnesses to be examined on
his behalf;
NOTE: - If the Agency employee applies orally or
in writing for the supply of copies of statements of
witnesses mentioned in the list referred to in sub-
rule (3), the inquiring authority shall furnish him
with such copies as early as possible and in any
case not later than three days before the
commencement of the examination of the
witnesses on behalf of the disciplinary authority.
(iii) Give a notice within ten days of the order or
within such further time not exceeding ten days as
the inquiring authority may allow for the discovery
or production of any documents which are in the
possession of Agency but not mentioned in the list
referred to in sub-rule (3).
NOTE: - The Agency employee shall indicate the
relevance of the documents required by him to be
discovered or produced by the Agency.
(12) The inquiring authority shall, on receipt of
the notice for the discovery or production of
documents, forward, the same or copies thereof to
the authority in whose custody or possession the
documents are kept, with a requisition for the
production of the documents by such date as may
be specified in such requisition:
Provided that the inquiring authority may, for
reasons to be recorded by it in writing, refuse to
requisition such of the documents as are, in its
opinion, not relevant to the case.
(13) On receipt of the requisition referred to in
such-rule (12), every authority having the custody
or possession of the requisitioned documents shall
produce the same before the inquiring authority:
Provided that if the authority having the custody or
possession of the requisitioned documents is
satisfied for reasons to be recorded by it in writing
that the production of all or any of such documents
would be against the Agency's interest or public
interest or security of the state, it shall inform the
inquiring authority accordingly and the inquiring
authority shall on being so informed, communicate
the information to the Agency employee and
withdraw the requisition made by it for the
production or discovery of such documents."
(14) On the date fixed for the inquiry, the oral
and documentary evidence by which the articles of
charge are proposed to be proved shall be produced
by or on behalf of the disciplinary authority. The
witnesses shall be examined by or on behalf of the
Presenting Officer and may be cross-examined by
or on behalf of the Agency employee. The
Presenting Officer shall be entitled to re-examine
the witness on any points on which they have been
cross-examined, but not on any new matter,
without the leave of the inquiring authority. The
inquiring authority may also put such questions to
the witnesses as it think fit.
(15) If it shall appear necessary before the close of
the case on behalf of the disciplinary authority, the
inquiring authority may, in its discretion, allow the
Presenting Officer to produce evidence not
included in the list given to the Agency employee
or may itself call for new evidence or recall and re-
examine any witness and in such case the Agency
employee shall be entitled to have, if he demands
it, a copy of the list of further evidence proposed to
be produced and an adjournment of the inquiry for
three clear days before the production of such new
evidence, exclusive of the day of adjournment and
the day to which the inquiry is adjourned. The
inquiring authority shall give the Agency employee
an opportunity of inspecting such documents
before they are taken on the record. The inquiring
authority may also allow the Agency employee to
produce new evidence, if it is of the opinion that
the production of such evidence is necessary in the
interest of justice.
NOTE: - New evidence shall not be permitted or
called for or any witness shall not be recalled to fill
up any gap in the evidence. Such evidence may be
called for only when there is an inherent lacuna or
defect in the evidence which has been produced
originally.
16) When the case for the disciplinary authority
is closed the Agency employee shall be required to
state his defence, orally or in writing, as he may
prefer. If the defence is made orally, it shall be
recorded and the Agency employee shall be
required to sign the record. In either case, a copy of
the statement of defence shall be given to the
Presenting Officer, if any, appointed.
(17) The evidence on behalf of the Agency
employee shall then be produced. The agency
employee may examine himself in his own behalf
if he so prefers. The witnesses produced by the
Agency employee shall then be examined and shall
be liable to cross-examination, re-examination and
examination by the inquiring authority according to
the provisions applicable to the witnesses for the
disciplinary authority.
(18) The inquiring authority may, after the
Agency employee closes his case, and shall, if the
Agency employee has not examined himself,
generally question him on the circumstances
appearing against him in the evidence for the
purpose of enabling the Agency employee to
explain any circumstances appearing in the
evidence against him.
(19) The inquiring authority may, after the
completion of the production of evidence, hear the
Presenting Officer, if any, appointed and the
Agency employee, or permit them to file written
briefs of their respective case, if they so desire."
29. The requirements of sub-rules (11) to (19) of Rule 11 of the
CCA Rules may be paraphrased thus:
(i) The charged officer may apply for discovery or
production of any document, which is in the possession of the
EIA, but not mentioned in the list of documents enclosed with
the chargesheet. He is, however, required to provide the
relevance of the said documents. On receipt of such notice, by
the charged employee, seeking discovery or production of
documents, the IO shall forward the said request to the
authority, in whose custody or possession the documents are
kept, with a requisition for production of the documents by a
specified date. The IO has, however, the right to refuse
production of documents which, according to it, are not relevant
to the case.
(ii) On receipt of the requisition from the IO, the authority
having the custody or possession of the requisitioned documents
shall produce the same before the IO, provided that, if such
production is against the interests of the EIA or against public
interests or the security of the State, the authority having
custody or possession of the documents shall inform the IO
accordingly, and such information shall be communicated, by
the IO, to the charged employee. In such an event, the IO can
withdraw the requisition for production or discovery of such
documents.
(iii) On the date fixed for the inquiry, the disciplinary
authority shall produce the oral and documentary evidence, by
which the article/articles of charge is/are proposed to be proved.
The PO shall examine the witness, who may be cross-examined
by, or on behalf of the charged officer. The PO shall have a
right of re-examination. The PO has the right to produce
additional evidence, subject to the condition that, the list of such
additional evidence shall be made available to the charged
officer at least three days prior to the production of the
evidence. The charged officer shall be allowed to inspect such
documents, before they are taken on record. Similarly, an
opportunity to produce new evidence shall also be extended to
the charged officer.
(iv) Consequent to closure of the case for the disciplinary
authority, the charged officer shall be required to state his
defence, orally or in writing. A copy of the statement of defense
shall be given to the PO.
(v) It is only thereafter, that the evidence, on behalf of the
charged officer, shall be produced. The charged officer may
examine himself if he so prefers. The witnesses produced by the
charged officer shall then be examined, and shall be liable to
cross-examination, re-examination and examination by the IO.
(vi) After the charged officer closes his case, the IO may
generally question the charged officer on the circumstances
appearing against him in the evidence, for the purpose of
enabling the charged officer to explain any such circumstance.
This requirement is mandatory, where the charged officer has
not examined himself.
(vii) After the completion of production of evidence in the
manner aforesaid, the IO may hear the PO and the charged
officer, or permit them to file written briefs.
30. A glance at the above procedure, as exhaustively prescribed in
Rule 11 of the CCA Rules, vis-à-vis, the procedure followed in the
present case, makes it more than apparent that there has been scant
regard for the former. The scheme of the rule is categorical. The
petitioner was entitled to seek discovery or production of documents,
in the possession of the EIA, but not mentioned in the list annexed to
the chargesheet. Subject to his providing the relevance of such
documents, the IO was bound to forward the said request to the
authority, in whose custody or possession the documents were kept,
with a requisition for production thereof. This, in fact, was done in the
present case.
31. On receipt of such requisition, the authority having possession
of the documents was equally bound to produce the same before the
IO. Refusal to do so could only be for one of the reasons contemplated
by the proviso to sub-rule (13) of Rule 11, i.e., where such production
would be (i) against the interests of the EIA, or (ii) against public
interest, or (iii) against the security of the state. Needless to say, the
"interests of the EIA" could not include the consideration that
production of the documents may weaken the case of EIA, against the
petitioner, being contested before this Court. Such a construction
would be absurd and preposterous, in equal measure.
32. Despite no such exigency existing, the documents which were
allowed, by the IO, vide letter dated 7th December, 1999, were never
made available to the petitioner. This, even by itself, was sufficient to
vitiate the proceedings in their entirety.
33. That apart, there is considerable force, in the submission of the
petitioner, that the non-providing of the attendance register of Smt.
Bimla Sharma for the month of February, 1999, was starkly violative
of the principles of natural justice and fair play. The allegation, against
the petitioner, was of having sexually harassed Smt. Bimla Sharma on
2nd February, 1999. The petitioner had specifically taken a stand that
Smt. Bimla Sharma was not present in office on the said date. It was
essential, therefore, for the petitioner to be provided a copy of the
attendance register of Smt. Bimla Sharma for 2nd February, 1999. The
comment, contained in the EIA note dated 30th December, 1999 to the
effect that the attendance register for the Admn. Section of the EIA,
for the month of February, 1999 was not available, obviously cannot
be accepted, and necessary invites an inference that the said
attendance register was either deliberately destroyed, or was being
suppressed, so as to prejudice the defense of the petitioner.
34. It is only once the above exercise, of production and providing
of documents was over, that the stage of recording of evidence would
reach. A reading of the record of proceedings dated 4th June, 2001
reveals that, on the said date, the IO specifically recorded that the
representation dated 5th May, 2001, of the petitioner, was still under
consideration. On the next date of hearing, i.e., 3 rd July, 2001, the IO
abruptly rejected the said representation dated 5th May, 2001, on the
sole ground that the documents available with the IO had been
provided to the petitioner, completely ignoring - whether
inadvertently or otherwise - the fact that the documents, sought by the
petitioner, and the supply whereof had been allowed by the IO, had yet
to be supplied to petitioner. He proceeded, after requiring the
petitioner to cross-examine the witnesses of the prosecution, to
abruptly close the inquiry. Needless to say, this decision of the IO is
totally unsustainable in law and was blatantly violative of principles of
natural justice and fair play.
35. Mr. Gupta is right in his submission that, in doing so, the right
of the petitioner, to lead defense evidence, was rudely emasculated.
Sub-rule (16) of Rule 11 stipulates that, when the case of the
disciplinary authority is closed, the charged officer would be required
to state his defense, a copy whereof would be provided to the PO. In
the present case, the IO preferred never to close the case of the
disciplinary authority at all, but to close the inquiry itself on 3 rd July,
2001. As a result, the procedure prescribed in Sub-rule (16) to (18) of
Rule 11 was conveniently jettisoned. Neither was the case of the
disciplinary authority closed, nor, thereafter, was an opportunity
extended, to the petitioner, to state his defense, nor, needless to say,
was any opportunity was given to the petitioner, thereafter, to lead his
defence. Sub-rules (17) and (18) of Rule 11 requires the IO to, if the
charged officer chooses not to examine himself in the inquiry
proceedings, generally question the charged officer on the
circumstances appearing against him in the evidence, so as to enable
him to explain the circumstances. As no opportunity was extended, to
the petitioner, to lead his defense evidence at all, this procedure was
also done away with.
36. Mr. Gupta is right, therefore, in contending that the IO acted as
though Sub-rules (16) to (18) of Rule 11 of the CCA Rules were not in
existence at all, and straightway proceeded to apply Rule 19 thereof.
These infirmities are fatal. They completely negated the right of the
petitioner to a fair defense, to the charge against him. They have
resulted in blatant prejudice to the petitioner, and disclose unholy
haste, on the part of the IO, to complete the proceedings, any which
way, sacrificing, in the process, the procedure specifically set out in
Rule 11 of the CCA Rules, whereunder the proceedings had been
initiated.
37. The entire proceedings against the petitioner, in my view, would
be liable to be set-aside even on this ground.
38. The petitioner has also objected to the fact that he was provided
only photocopies of the documents relied upon by the EIA. The copy
of the complaint, dated 3rd February, 1999, of Smt. Bimla Sharma as
provided, to him, was also a photocopy. The IO has, in his inquiry
report, noted the fact that the petitioner was entitled to the original of
the said document. However, a reading of the inquiry report discloses
that, despite the efforts of the IO, the said original complaint of Smt.
Bimla Sharma was never made available.
39. Though the IO has chosen to rely, in this context, on the
deposition of Smt. Bimla Sharma, before him, vouchsafing the
contents of the copy of the complaint dated 3 rd February, 1999 supra,
there is substance in the objection of Mr. Gupta, that the said
statement was also, conspicuously, unsigned on the page where she
had deposed to the said effect. There is no explanation, forthcoming,
for this lacuna. The finding, of the IO, on this aspect, is obviously a
finding in terrorem, for want of any better explanation. The IO has
sought to wish away this contention of the petitioner by stating that he
ought to have raised it at least on the last date of hearing. Needless to
say, such a finding need only to be rejected to be discarded. This, in
my view, is a serious infirmity in the proceedings.
40. As already noted hereinabove, the documents requisitioned by
the petitioner to enable him to defend the charge against him, the
supply of which was allowed by the IO vide letter dated 7th December,
1999 were never provided to the petitioner.
41. To this, too, there is no explanation, whatsoever, either in the
inquiry report, or in the impugned order of the disciplinary authority,
or even by learned counsel appearing for EIA before this Court.
42. The finding of the IO, to the effect that the petitioner had not
introduced his defense witnesses, is also, obviously, preposterous, as
no opportunity, to introduce defense witnesses was ever extended to
the petitioner, as also noted hereinabove. The petitioner had also
pointed out that the Smt. Bimla Sharma had moved the Vigilance Cell
of Delhi Police alleging sexual harassment, of her, by the petitioner,
on 3rd February, 1999. This allegation was investigated by the
Vigilance Cell of Delhi Police and found to be without substance. The
petitioner points out that during the said proceedings, Mr. K.K.
Kharbanda and Mr. J.P. Maikhuri, who were present in the office on
the date of alleged incident, had come on record stating that no such
incident had taken place. These statements were, therefore, pivotal to
the defence of the petitioner. Even at the stage of considering the
petitioner's request for leading the defense witnesses, the IO, without
any justifiable reason, denied the right to lead the defense of Mr. J.P.
Maikhuri, and allowed the petitioner only to lead the evidence of Mr.
K.K. Kharbanda. Having done so, it was incumbent on the IO to direct
the EIA to make the said defense witnesses, as they were officers of
the EIA.
43. The IO never even allowed the stage of defence evidence to
reach, as he closed the evidence prior thereto.
44. The impugned order dated 29th October, 2005 of the
disciplinary authority is totally non-speaking in nature and does not
consider any of the submissions made by the petitioner in his
representation dated 5th May, 2001 against the inquiry report. The
inquiry report of the IO, too, does not consider the submissions of the
petitioner, choosing to confirm the allegations against him solely on
the basis of the statement of the three prosecution witnesses, whose
testimonies were never allowed to be tested by cross-examination,
except on 3rd July, 2001, on which date, as per the order passed on the
previous date of hearing i.e., 4th June, 2001, the representation dated
5th May, 2001, of the petitioner, ought to have been taken up and
decided. The petitioner was, therefore, clearly taken by surprise on 3 rd
July, 2001, when he was asked to cross-examine the PWs and even if
he was not in a position to do so on the said date, the IO acted in a
clearly arbitrary manner in choosing to close the inquiry thereupon.
45. In any event, the stage of recording the evidence could not be
said to have reached at all, as the documents sought by the petitioner,
as allowed by the IO, including the attendance register of Smt. Bimla
Sharma for the month of February, 1999, were yet to be made
available to him.
46. Clearly, the manner in which the inquiry against the petitioner
has proceeded is a mere mockery of the principles of natural justice
and fair play. It is obvious that the EIA acted with a view to confirm
the charge, against the petitioner, at all costs, in violation of the most
basic canons and tenets of principles of natural justice.
Conclusion
47. In view of the above findings, I am of the view of that the
impugned order dated 29th October, 2005 imposing, on the petitioner,
a penalty of 50% reduction in pension, cannot sustain, and has
necessarily to be set aside. Accordingly, the impugned order dated
29th October, 2005 is quashed and set aside.
48. The petitioner would be entitled to all consequential reliefs,
including arrears of pension, if they have been withheld in accordance
with the impugned order.
49. As the petitioner has, unfortunately, expired as far back as in
2006 itself, these benefits would necessarily have to be paid to the
surviving legal heirs of the petitioner, who already stand substituted.
50. The EIA is directed to comply with this order within a period of
four weeks from the date of pronouncement thereof. Failure to do so,
shall invite interest at the rate of 12% per annum from the date of
expiry of the said period of four weeks, till the date of payment of the
said amount.
51. Thought the facts of the case would warrant imposition of costs
on the respondent, as the petitioner has expired in 2006, I refrain from
doing so.
52. The writ petition is disposed of accordingly with the above
terms.
C. HARI SHANKAR, J
JULY 01, 2019
dsn
