Himachal Pradesh High Court
Police H.Q. Shimla) vs State Of Rajasthan And Others on 10 September, 2021
Bench: Jyotsna Rewal Dua
1
IN HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 10th DAY OF SEPTEMBER, 2021
BEFORE
.
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION No. 3318 of 2021
Between :-
PRAVEER KUMAR THAKUR,
S/O SH. BALBIR SINGH VERMA,
R/O HOUSE No. 235-B, 1st FLOOR,
SECTOR-3, NEW SHIMLA, H.P.
PRESENTLY WORKING AS
ADDL. SUPERINTENDENT OF POLICE,
(TEMPORARILY ATTACHED AT
POLICE H.Q. SHIMLA).
...PETITIONER
(BY MR. BIMAL GUPTA,
SENIOR ADVOCATE, WITH
MR. SATISH SHARMA, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS PRINCIPAL SECRETARY
(HOME) GOVERNMENT OF
HIMACHAL PRADESH, SHIMLA.
2. THE DIRECTOR GENERAL OF POLICE,
STATE OF H.P., POLICE H.Q.,
NIGAM VIHAR, SHIMLA.
3. THE CHAIRPERSON,
INTERNAL COMPLAINT COMMITTEE
ON SEXUAL HARASSMENT OF WOMEN
AT WORKPLACE POLICE H.Q., SHIMLA
4. MS. RANJANA CHAUHAN,
IPS (FATHER'S NAME NOT KNOWN TO
::: Downloaded on - 31/01/2022 23:03:29 :::CIS
2
THE PETITIONER) SUPERINTENDENT
OF POLICE, (LR)-CUM-CHAIRPERSON OF
INTERNAL COMPLAINT COMMITTEE,
POLICE H.Q. SHIMLA ON SEXUAL
.
HARASSMENT OF WOMEN AT
WORKPLACE, PHQ, SHIMLA-2 (HP).
...RESPONDENTS
(MS. RITTA GOSWAMI,
ADDITIONAL ADVOCATE GENERAL
WITH MS. SEEMA SHARMA,
DEPUTY ADVOCATE GENERAL,
FOR THE STATE)
RESERVED ON : 31 st AUGUST, 2021
DATE OF DECISION : 10th SEPTEMBER, 2021
WHETHER APPROVED FOR REPORTING ? YES
____________________________________________________
This petition coming on for pronouncement this day,
Hon'ble Ms. Justice Jyotsna Rewal Dua, passed the following
ORDER
The Internal Complaints Committee on sexual
harassment of women at workplace has issued a memorandum
to the petitioner on 28.05.2021 under Rule 14 of CCS(CCA)
Rules 1965. Competence of the complaints committee to issue
this memorandum is the main contention raised in this petition.
2. Facts leading to filing of the writ petition :
2(i) Petitioner qualified H.P. State Administrative
Services Combined examination in the year 2008 and was
selected as Deputy Superintendent of Police (HPPS). He was
thereafter promoted as an Additional Superintendent of Police in
September, 2017.
.
2(ii) A complaint of sexual harassment at workplace was
lodged against the petitioner on 11.05.2021. The Superintendent
of Police Shimla sent the complaint to the Director General of
Police, Himachal Pradesh-respondent No. 2. FIR No. 14 of 2021
was registered against the petitioner at Women Police Station
Shimla on 13.05.2021 under Sections 354 and 354A(1)(ii) of the
Indian Penal Code. Petitioner was granted anticipatory bail by the
learned Sessions Judge Shimla on 03.06.2021.
2(iii) The complaint dated 11.05.2021 was also sent to the
Internal Complaint Committee on Sexual Harassment of Women
at Workplace-respondent No.3 (ICC). Respondent No. 3 issued a
memo to the petitioner on 28.05.2021 under Rule 14 of the
Central Civil Services (Classification, Control and Appeal) Rules
1965 [in short the CCS(CCA) Rules 1965]. Petitioner was called
upon to submit his reply to the memo within 10 days. Petitioner
filed his reply on 04.06.2021, denying the charges and alleged
violation of principles of natural justice. He stated that he had not
been supplied copy of the complaint, copy of fact finding inquiry
report, if any, etc.
2(iv) Respondent No. 3 sent a notice dated 08.06.2021,
calling upon the petitioner to appear before it at Police
Headquarter Shimla on 10.06.2021 for inquiry proceedings.
.
Petitioner appeared before respondent No. 3 and came to know
that statements of two witnesses had already been recorded.
Petitioner was supposed to cross examine these witnesses, but
he was under the impression that he had been called for personal
hearing. Caught unaware, he requested for deferring the cross
examination of these two witnesses. His request was accepted.
Later in the day, another notice was served upon him for
appearance before the ICC on 11.06.2021. Petitioner appeared
and submitted a representation for staying the proceedings
pointing out the legal requirements, shortcomings and procedural
lapses on part of ICC in conduct of the inquiry. He also raised an
issue of denial of fair opportunity of defence. According to the
petitioner, his representation went unconsidered, rather ICC
examined one more witness on 11.06.2021. Unprepared,
petitioner again took an adjournment for cross examination of this
witness as well. Further proceedings were fixed for 14.06.2021.
2(v) Aggrieved with mode and manner of conduct of
inquiry by the ICC, petitioner preferred instant writ petition with
following reliefs :-
"i) That Memorandum dated 28.05.2021 (Annexure P-3)
issued by respondent No. 4 as Chairperson of respondent
No. 3 may kindly be held wrong, patently illegal and contrary
.
to the provisions of the CCS (CCA) Rules 1965 and,
therefore, may kindly be set aside.
ii) That the proceedings initiated by respondent No. 3
pursuant to issuance of Annexure P-3 may kindly be held
wrong, illegal and violative of the procedure prescribed for
initiation of inquiry in such cases and the same may kindly be
quashed and set aside.
(iii) That in the alternative since the proceedings against the
petitioner after issuance of Annexure P-3 are based upon
same set of facts founded on complaint, allegations and is
also a subject matter of FIR No. 14 of 2021, therefore,
departmental proceedings initiated against the petitioner may
kindly be kept in abeyance till the completion of the trial
arising out of FIR No. 14 of 2021."
During hearing of the case, Mr. Bimal Gupta, learned
Senior Counsel for the petitioner, submitted that he will not press
relief No. (iii) at this stage in the instant petition and will raise it at
an appropriate stage in appropriate proceedings. His submission
is accepted.
3. Contentions:
Gist of the arguments advanced by Mr. Bimal Gupta,
learned Senior Counsel for the petitioner is that the memorandum
alongwith charges (Annexure P-3) dated 28.05.2021 has been
issued by ICC-respondent No. 3 under Rule 14 of the CCS(CCA)
Rules, whereas respondent No. 3 has no authority to issue the
memorandum under Rule 14 of the CCS(CCA) Rules. In terms of
.
Rule 14, the charge sheet can be issued to him in accordance
with law by the disciplinary authority. Respondent No. 3 is neither
his disciplinary authority nor the competent authority to issue the
memorandum under Rule 14. Inquiry is not being conducted in
accordance with mandatory provisions of the Sexual Harassment
of Women at Workplace (Prevention, Prohibition and Redressal)
Act, 2013 (in short Act of 2013) and the Rules framed thereunder.
Guidelines framed by Ministry of Personnel, Government of India
in the Office Memorandum (in short O.M.) dated 16.07.2015
detailing the procedure for holding the inquiry in sexual
harassment complaints are being violated. Circular dated
26.06.2019 issued in this regard by respondents-State is also
being disregarded by the ICC. Inquiry is being conducted against
the petitioner in a hot-haste manner and in violation of principles
of natural justice. As per provisions of Rule 14 of the CCS(CCA)
Rules, memo of charge sheet is required to be served alongwith
article of charges, imputation in support of charges, documents
relied upon and list of witnesses to be examined etc. All these
documents were not supplied to the petitioner. The petitioner had
to make a specific request for the supply of these documents on
04.06.2021.
Ms. Seema Sharma, learned Deputy Advocate
.
General, has defended the issuance of impugned memorandum
dated 28.05.2021 by the ICC. The case of the respondents is that
inquiry is being conducted as per Standard Operating Procedure
No. 580 of 2017 (in short SOP), CCS(CA) Rules and the Act of
2013. While conducting the inquiry, O.M. dated 16.07.2015 and
circular dated 26.06.2019 have also been followed. Respondent
No.3, the Committee is competent to issue the memorandum
dated 28.05.2021.
4. Legal History:
4(i) In (1997) 6 SCC 241, titled Vishaka and others Vs.
State of Rajasthan and others, Hon'ble apex Court laid down
various guidelines for protecting women from sexual harassment
at workplace. Some of the guidelines pertained to taking
disciplinary action against the accused employees. These were :-
"...........................................................
5. Disciplinary Action:
Where such conduct amounts to mis-conduct in
employment as defined by the relevant service rules,
appropriate disciplinary action should be initiated by the
employer in accordance with those rules.
6. Complaint Mechanism:
.
Whether or not such conduct constitutes an offence
under law or a breach of the service rules, an appropriate
complaint mechanism should be created in the employer's
organization for redressal of the complaint made by the
victim. Such complaint mechanism should ensure time
bound treatment of complaints.
7. Complaints Committee:
The complaint mechanism, referred to in (6) above,
should be adequate to provide, where necessary, a
Complaints Committee, a special counsellor or other
support service, including the maintenance of
confidentiality.
The Complaints Committee should be headed by a
woman and not less than half of its member should be
women. Further, to prevent the possibility of any under
pressure or influence from senior levels, such Complaints
Committee should involve a third party, either NGO or other
body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual
report to the government department concerned of the
complaints and action taken by them.
The employers and person in charge will also report
on the compliance with the aforesaid guidelines including
on the reports of the Complaints Committee to the
.
Government department.
.............................................................."
The Complaints Committees were set-up for dealing
with complaints of sexual harassment at workplace, pursuant to
the judgment in Vishaka and others Vs. State of Rajasthan and
others (1997) 6 SCC 241.
4(ii) The
r above
guidelines were followed
amendment to Rule 14 of the CCS(CCA) Rules, 1965 prescribing
by an
procedure for imposing penalties. On 10.07.2004, following
proviso was inserted after Rule 14(2) :-
"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
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."
As per proviso to Rule 14(2) of the CCS (CCA)
Rules, in case of complaints of sexual harassment, the
Complaints Committee set-up in each department for inquiring
.
into sexual harassment complaints shall be deemed to be the
inquiring authority appointed by the disciplinary authority for the
purpose of CCS(CCA) rules. Unless a separate procedure has
been prescribed, the Complaints Committee shall hold the inquiry
as far as practicable in accordance with the procedure laid down
in CCS(CCA) Rules.
4(iii) The Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013 came into force
on 22.04.2013. Gist of some provisions of this Act relevant to the
case in hand are as under :-
i) An aggrieved woman may make in writing a
complaint of sexual harassment at workplace to the
internal/local committee, as the case may be, within three
months from the date of the incident. For reasons to be
recorded in writing, this time period can be extended by
further three months on showing of sufficient cause.
[Section 9].
ii) Inquiry into the complaint shall be conducted in
accordance with service rules applicable to the respondent
(if he is an employee), where no rules exist, then in such
manner as may be prescribed. [ Section 11(1) ]
iii) For the purpose of inquiry, the committee shall have
same powers as are vested in a civil Court under the Code
of Civil Procedure when trying a suit in respect of
.
summoning, enforcing the attendance of any person,
examining him on oath, requiring the discovery and
production of document and any other matter which may be
prescribed. [ Section 11(3) ]
iv) The inquiry is to be completed within a period of 90
days. [ Section 11(4) ]
v) On completion of inquiry, the Complaints Committee
is to provide a report of its findings to the employer within a
period of ten days. The report is also to be made available
to the concerned parties. [ Section 13 (1) ]
vi) If the Complaints Committee concludes that
allegations leveled in the complaint are proved, then it shall
recommend to the employer to take action against
respondent for sexual harassment as a misconduct in
accordance with applicable service rules or where no
service rules have been made, in such manner as may be
prescribed. [ Section 13(3) ]
In the instant case, complaint dated 11.05.2021 relating
to sexual harassment was forwarded to the ICC. The ICC was to
enquire into a matter where allegations had been levelled against
an employee (petitioner), who was a gazetted State Police
Service Officer (HPPS) governed by the CCS(CCA) Rules 1965
for disciplinary purposes. Section 11 of the Act of 2013 provides
that where the respondent is an employee, then the inquiry has to
be conducted in accordance with Service Rules applicable to him.
5. The SOP No. 580 of 2017
.
The respondents' case is that in the police
department, SOP No. 580 of 2017 has been framed, providing
mechanism for redressal of complaints of sexual harassment at
workplace. The SOP as per its para 13 was valid for a period of
three years from the date of issue. According to the respondents,
its validity has been retrospectively extended on 01.06.2021
w.e.f. 06.01.2021 to 06.01.2023.
5(i) As per para 4 of the SOP, under the H.P. Police Act,
2007, there are four categories of police personnel governed by
separate disciplinary provisions. Petitioner falls in the category of
Gazetted State Police Service Officer, who for disciplinary
purpose is governed by CCS(CCA) Rules. The relevant part of
para 4 reads as under :-
"In Himachal Pradesh Police there are four
categories of personnel as provided under Section 4 of
Chapter-II of H.P. Police Act-2007-
(i) Non-Gazetted Police Officers Grade-II, comprising of
Constables and Head Constables ;
(ii) x x x x x x x x x x x x x x x x x x x x x x
(iii) Gazetted State Police Service Officer; and
(iv) x xx x x x x x x x x x x x x x x x x x x x
(a) x x x x x x x x x x x x x x x x x x x x x x
(b) Personnel under category (iii) are governed as per
provisions of Rule-14 of Central Civil Services
.
(Classification, Control & Appeal) Rules, 1965 as well
as relevant provisions of H.P. Police Act-2007 & CCS
(Conduct) Rules.
(c) x x x x x x x x x x x x x x x x x x x x x x"
5(ii) Para 7(a) of the SOP gives the complaint
mechanism. Clauses (x) and (xi) state that in the preliminary
hearing, the committee should serve gist of the complaint to the
alleged officer (in the form of articles of charge) and he should
formally be asked whether he pleads guilty or otherwise. If the
charges are denied, the complainant should be asked to produce
her witnesses, if any, for recording their statements. These two
clauses are extracted hereinbelow :-
"(x) In the preliminary hearing the Chairperson/Presiding
Officer should serve gist of complaint to the alleged
officer/official (in the form of articles of charge) and he
should formally be asked whether he pleads guilty or
otherwise.
(xi) If the charges are denied, the complainant should be
asked to produce her witnesses, if any, before the Internal
Complaints Committee for recording their statements."
Clause (xvii) of para 7(a) provides that after
recording the defence and proceedings of cross examination of
defence witnesses, the committee is to give its findings. A copy of
the findings of the complaints committee is to be provided to the
respondent to enable him to file reply to the disciplinary authority.
.
The disciplinary authority will decide the matter as per procedure
laid down in para 4. Clauses (xvii), (xviii) and (xix) of para 7(a) of
the SOP are as under :-
""(xvii) the Committee to give the findings opinion after
recording the defense and proceedings of cross
examination of defense witnesses, documents etc., if any.
(xviii) On receipt of the finding from Internal Complaints
Committee, copy of the same should be provided to the
respondent for his reply to the Disciplinary Authority.
(xix) On receipt of representation, if any, submitted by the
respondent, the case should be finally decided by the
competent authority as per procedure laid in
rules/provisions quoted under para-4."
5(iii) Para 4 of the SOP (part of which has already been
extracted hereinabove) ends as under :-
"The enquiry conducted by the Complaints
Committee shall be treated as DE for awarding any
punishment by the disciplinary authority, as per above
provisions."
6. O.M. dated 16.07.2015 :
Both the parties have not denied the applicability of
office memorandum dated 16.07.2015 issued by Government of
India, Ministry of Personnel, Public Grievances and Pensions,
Department of Personnel & Training. This memorandum outlines
steps for conducting inquiry in complaints of sexual harassment.
.
6(i) This office memorandum says that keeping in view
the proviso to Rule 14(2) of CCS(CCA) Rules, the ICC will be
involved in two stages. First is at the stage of investigation and
the second stage is where the ICC acts as an inquiring authority
and conducts the inquiry as far as practicable as per Rule 14 of
the CCS(CCA) Rules. Para 9 of the O.M. runs as follows :-
"In the light of the Proviso to the Rule 14(2)
mentioned above, the Complaints Committee would
normally be involved at two stages. The first stage is
investigation already discussed in the preceding para.
The second stage is when they act as Inquiring Authority.
It is necessary that the two roles are clearly understood
and the inquiry is conducted as far as practicable as per
Rule 14 of CCS (CCA) Rules, 1965. Failure to observe
the procedure may result in the inquiry getting vitiated."
6(ii) First Stage of Involvement of ICC :-
Preliminary/fact finding inquiry/investigation- ICC
conducts investigation to try to ascertain truth of allegations. This
is done by collecting documents as well as recording statements
of witnesses, if any, including the complainant. The investigation
report at this stage assumes significance as the disciplinary
authority relies on this investigation report in case of issuance of
charge sheet, for drafting the imputations as well as for evidence
by which the charges are to be proved. Para 8 of the
.
memorandum reads as under :-
As mentioned above, the complaints of sexual
harassment are required to be handled by Complaints
Committee. On receipt of a complaint, facts of the
allegation are required to be verified. This is called
preliminary enquiry/fact finding enquiry or investigation.
The Complaints Committee conducts the investigation.
They may then try to ascertain the truth of the allegations
by collecting the documentary evidence as well as
recording statements of any possible witnesses including
the complainant. If it becomes necessary to issue a
Charge Sheet, disciplinary authority relies on the
investigation for drafting the imputations, as well as for
evidence by which the charges are to be proved.
Therefore, this is a very important part of the
investigation."
6(iii) Disciplinary Authority gets into picture after the First
Stage :-
The investigation report submitted by ICC as
contemplated in para 8 is then sent to the disciplinary authority.
The disciplinary authority will examine the report as to whether a
formal charge sheet needs to be issued to the respondent-official
or not. As per Rule 14(3) of the CCS(CCA) Rules, charge sheet is
to be drawn by or on behalf of the disciplinary authority. In case
charge sheet is issued to the officer, then he is to be given an
opportunity to reply to the charge sheet. As per Rule 14(5) of the
CCS(CCA) Rules, a decision to conduct the inquiry has to be
.
taken after consideration of reply of the charged officer. This, as
contemplated in para 12 of the office memorandum, is as
under :-
"On receipt of the Investigation Report, the
Disciplinary Authority should examine the report with a
view to see as to whether a formal Charge Sheet needs
to be issued to the Charged Officer. As per Rule 14(3),
Charge Sheet is to be drawn by or on behalf of the
Disciplinary Authority. In case the Disciplinary Authority
decides on that course, the Charged Officer should be
given an opportunity of replying to the Charge sheet. As
per Rule 14(5), a decision on conducting the inquiry has
to be taken after consideration of the reply of the charged
officer."
6(iv) Second Stage of involvement of ICC:-
In case the charged officer denies the charges and
his reply is not considered convincing, then charge sheet issued
to him under CCS(CCA) Rules alongwith his reply is sent to the
ICC for conducting formal inquiry into the matter. As per Section
11(3) of Act of 2013, the ICC comes into picture once again at
this stage for holding formal inquiry. The ICC gets all the powers
of the Civil Court to summon, enforce the attendance of any
person, examine him on oath, require discovery and production of
documents etc. Relevant para 14 of the office memorandum is as
under :-
.
"In case the Charged Officer denies the charges and
his reply is not convincing, the Charge sheet alongwith
his reply may be sent to the Complaints Committee for
formal inquiry, and documents mentioned in Rule 14(6)
will be forwarded to the Complainants Committee. As
per Section 11(3) of the Act, for the purpose of making
any inquiry, the Complaints Committee shall have the
same powers as are vested in a civil court under the
Code of Civil Procedure, 1908 when trying a suit in
respect of the following matters, namely :-
(a) summoning and enforcing the attendance of any
person and examining him on oath ;
(b) requiring the discovery and production of
documents; and
(c) any other matter which may be prescribed.
The Section 11(4) of the Act requires that the inquiry
shall be completed within a period of ninety days."
6(v) The disciplinary authority in terms of Rule 14(5) (c) of
CCS (CCA) Rules shall appoint the Presenting Officer. Charged
officer is also entitled to defence assistant. Para 15 of the office
memorandum in this regard is as follows :-
"The Disciplinary Authority shall also in terms of Rule
14(5) (c) appoint a Government servant as a Presenting
Officer to present evidence on behalf of prosecution
before the Complaints Committee/Inquiring Authority.
The listed documents are to be sent to the Presenting
Officer. The Complaints Committee would, thereafter,
.
summon the Presenting Officer and the Charged Officer.
As a first step, the charged officer would be formally
asked as to whether he admits the charges. As
mentioned above, in case of any clear and unconditional
admission of any Article of Charge, no inquiry would be
held in respect of that Article and the admission of the
Charged Officer would be taken on record. The inquiry
would be held thereafter, in respect of those charges
which have not been admitted by the Charged Officer.
The Charged Officer is also entitled to engage a Defence
Assistant. The provisions relating to Defence Assistant
are given in Rule 14(8)."
The other paras of O.M. give the subsequent procedure.
7. The Circular dated 29.06.2019 :
It will also be worth noticing a circular dated
26.06.2019 issued by the Department of Personnel Government
of Himachal Pradesh. The circular was issued in sequel to the
O.M. dated 16.07.2015 (referred to in para 6 above). The circular
was issued to all the Heads of departments. The circular
reiterates that ICC's role at first stage is to conduct a fact finding
inquiry. If it is considered necessary to issue the charge sheet,
then disciplinary authority shall issue the charge sheet under
CCS(CCA) Rule 14(3) relying upon the fact finding report. After
considering the reply of the charged officer to the charge-sheet,
the disciplinary authority shall take a call upon holding of formal
inquiry against the employee. For conducting the formal inquiry,
.
the matter alongwith all relevant documents is again sent to ICC
which is the inquiring authority in terms of Act of 2013. For
holding the formal inquiry, presenting officer is to be appointed.
Extracts from the circular are as follows :-
"(i) The internal Complaints Committee set up in each
organization under the provisions of the Section 4(1) of
the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013 has a
dual role. In the first stage, upon receipt of a complaint, it
can conduct a preliminary enquiry/fact finding enquiry or
investigation to verify the facts by collecting the
documentary evidence as well as recording statements of
any possible witness including the complainant, Under
Section 11(4) of the Act, the enquiry shall be conducted
within ninety days.
(ii) If it is felt necessary to issue a charge-sheet, then
disciplinary authority, under Rule 14 (3), relies upon the
investigation/preliminary/fact finding enquiry for drafting
the imputations as well as for evidence by which the
charges are proposed to be sustained.
(iii) The Charged Officer should be given an opportunity of
replying to the charge-sheet. As per the Rule 14(5), the
disciplinary authority after considering the reply of the
Charged Officer takes a decision whether a formal
enquiry is to be conducted.
(iv) The Complaints Committee shall be deemed to the
.
Inquiring Authority and enquiry into the charges framed
shall be held, as far as practicable as per Rule 14 of the
CCS (CCA) Rules, 1965.
(v) When allegations of bias are received against an
Inquiring Authority, the enquiry/investigation shall be
stayed till the disciplinary authority takes a decision on the
allegations of bias.
(vi) Under Rule 14(5) (c), a Presenting Officer is
appointed, the examination, cross-examination and re-
examination of prosecution/defence witnesses is done.
Under Rule 14(18), General Examination of the Charged
Officer is conducted and he is required to submit his
written brief. The Complaints Committee is empowered to
make its recommendations on specific points.
In this regard, attention is invited to the provisions
contained in Rule-14(1) of CCS (CCA) Rules, 1965 which
specifically stipulates that no order of imposition of any of
the penalties specified in clauses (v) to (ix) of Rule 11
shall be made unless an inquiry is held in the manner
provided in Rule-14 and Rule-15 otherwise the entire
process would be vitiated, might entail unnecessary
litigation and may not be legally tenable."
8. Observations :
8(i) Coming back to the facts of the case, as per reply
filed by the respondents, the inquiry is being conducted against
the petitioner in consonance with the SOP, the O.M. dated
16.07.2015, the CCS (CCA) Rules and the Act of 2013. As per
para 14 of the reply filed to the writ petition, a fact finding inquiry
.
was conducted by the committee on receipt of complaint dated
11.05.2021. The ICC found substance in the allegations made.
Thereafter, the committee decided to proceed with formal inquiry
on denial of charges by the petitioner. Relevant extract of the
reply is as under :-
"14. That in view of submissions made in preceding
paras, the averments made in this para are wrong hence
denied completely. It is, however, submitted that after
brief fact finding enquiry done by ICC wherein ICC
examined 08 police personnel. Based on statements of
the Police personnel examined, the Committee found
that prima facie there was substance in the allegations
made, as such, Committee decided to give gist of
allegations to the petitioner and same was served to the
petitioner on 28.05.2021 and was afforded an opportunity
to spell out his side of the alleged incident. Allegations
were denied by the petitioner. Then Committee decided
to go ahead with the formal enquiry. That the petitioner
made 3 representations dated 11.06.2021, 14.06.2021
and 18.06.2021 to the Committee seeking stay of the
proceedings based on different grounds in this
representations. The Committee deliberated on the
representations and did not find any merit in the
petitioner's plea in the light of the provisions of CCS
(CCA) Rules, 1965 and the provisions of the SOP issued
for enquiry into complaints of sexual harassment at
workplace. As such the committee decided to proceed
.
further with the enquiry under the provisions of the SOP
which as on date is valid. The Complainant was asked to
furnish a list of witnesses and documents/evidence if any
in support of allegations. On receipt of list of witnesses
the Committee proceeded to record the statements of
PWs in presence of petitioner. Further, petitioner prayed
for some time to cross examine the witnesses and same
was provided to the petitioner. Photocopies of
statements of PWs as well as copy of complaint against
him were also given to petitioner on 11.06.2021 to
facilitate him to prepare defence. Hence the averments
made in this para by the petitioner are devoid of any
merits hence not tenable."
The reply states that :
a) On receipt of the complaint, a fact finding inquiry
was conducted by the ICC. The Committee examined 8 police
personnel.
b) The ICC found substance in the allegations made by
the complainant.
c) The ICC decided to give gist of the allegations to the
petitioner. The gist of the allegations was served upon the
petitioner on 28.05.2021. On petitioner's denial of allegations, the
ICC decided to go ahead with formal inquiry against the petitioner
as per SOP.
d) During formal inquiry, the ICC recorded the
.
statements of PWs in presence of petitioner on 10.06.2021. At
request of the petitioner, inquiry proceeding was adjourned to
enable him to cross examine the PWs.
e) The ICC provided photocopy of the complaint dated
11.05.2021 and the statements of PWs to the petitioner on
11.06.2021 to facilitate him to prepare the defence.
f) The SOP does not provide for engagement of either
the Presenting Officer or the Defence Assistant. Therefore,
defence assistant cannot be provided to the petitioner.
8(ii) In the instant case, after completing the fact finding
inquiry, the ICC found substance in the allegations levelled
against the petitioner. The ICC decided to proceed with the formal
inquiry. The decision to hold a formal inquiry against the petitioner
was taken by the ICC on its own. Investigation/fact finding inquiry
was not referred by it to the disciplinary authority. The disciplinary
authority never came into picture at any stage. After investigation,
the ICC on its own considered it appropriate to issue
memorandum to the petitioner. The memorandum was issued
under Rule 14 of the CCS(CCA) Rules. Relevant averments
made by the respondents in their reply in this regard are
reproduced hereinafter :-
"Moreover, the memorandum dated 28.05.2021 has
.
been served to the petitioner in compliance of Rule 14 of
CCS (CCA) Rules. Thus the contention that due
procedure is being followed in the enquiry is not tenable
and hence denied."
8(iii) The ICC has no authority to issue the impugned
memorandum under Rule 14 of the CCS(CCA) Rules. It is the
pleaded case of the respondents that what was intended to be
conducted by issuing memorandum dated 28.05.2021 was a
formal inquiry. It will also be appropriate to extract hereinafter the
impugned memorandum dated 28.05.2021 issued to the
petitioner :-
"MEMORANDUM"
{Rule 14 of CCS (CCA) Rules }
"The undersigned has received a complaint (in
original) made by HC Richa Sharma, PS New Shimla,
District Shimla addressed to SP/Shimla vide DGP office
Letter No. DIV-I-(14)/2021-762 Dated 13.05.2021. The
letter directs undersigned to enquire the matter and
submit the report to the DGP/HP.
2. As per the complaint against Sh. Praveer Kumar
Thakur, HPS, Addl. SP Shimla, temporarily attached at
PHQ Shimla-2, there are charges of Sexual Harassment
at workplace and inappropriate undesirable behavior
including physical contact and advances. As per the
contents of the complaint and information and facts
.
available therein, the gist of allegations are hereby
served on Sh. Praveer Kumar Thakur, HPS, Addl. S.P.
enclosed as Annexure-I to IV.
3. Sh. Praveer Kumar Thakur is directed to submit his
reply to the allegations within 10 days of receipt of this
memorandum in form of written statement of his defence
and also with regard to his statement whether he admits
or deny each allegation.
4. Sh. Praveer Kumar Thakur is further informed that if
he does not submit his written statement of defence on
or before the date specified in Para 3 above, or does not
appear in person before the inquiring authority or
otherwise fails or refuses to comply with the provisions of
Rule 14 of the CCS (CCA) Rules, 1965 or the
orders/directions issued in pursuance of the said rule, the
inquiring Authority may hold the inquiry against him ex-
parte.
5. Attention of Sh. Praveer Kumar Thakur is invited to
Rule 20 of the Central Civil Service (Conduct) Rules,
1964 under which no government servant shall bring or
attempt to bring any political or outside influence to bear
upon any superior authority to further his interest in
respect of matters pertaining to his service under the
Government. If any representation is received on this
behalf from another person in respect of any matter dealt
with in these proceedings, it will be presumed that Sh.
Praveer Kumar Thakur is aware of such representation
and that it has been made at his instance and action will
be taken against him for violation of rule 20 of the CCS
(Conduct) Rules, 1964.
.
The receipt of the memorandum may be
acknowledged"
Four detailed Articles of charges are also part of the above
memorandum.
8(iii) As per pleaded case of the respondents, the fact
finding inquiry was conducted by the ICC on the complaint dated
11.05.2021. As per office memorandum dated 16.07.2015,
issued by Government of India, which is also applicable to all the
departments of the respondent-State as clarified by the
respondent-State in the circular dated 26.06.2019, and also as
per the provisions of Act of 2013, the committee, after completion
of fact finding/ preliminary inquiry/investigation, if is of the opinion
that the complaint has substance, then such investigation is to be
sent to the disciplinary authority. In conducting the fact finding
inquiry, the ICC recorded and examined statements of 8 police
personnel. It, prima facie, found substance in the allegations
levelled in the complaint. If that was so, then this would have
been the end of first stage of the role of ICC. The ICC thereafter
was required to send its fact finding report to the disciplinary
authority. It was for the disciplinary authority to examine the fact
finding report of the ICC and to decide whether to issue charge
sheet to the petitioner under Rule 14 of the CCS(CA) Rules or
not. In case the disciplinary authority decided to issue the charge
sheet to the petitioner, then the same was to be issued as per
.
Rule 14(3) of CCS (CCA) Rules. Reply was to be called from the
petitioner. Upon consideration of petitioner's reply, disciplinary
authority was to take the final decision whether to proceed with
formal inquiry against the petitioner or not. In case the disciplinary
authority decided to proceed with formal inquiry, then the matter
was to be again sent to the ICC as the ICC is the Inquiring
Authority in complaints of sexual harassment as per provisions of
Act of 2013 and the O.M. dated 16.07.2015. It is at this stage that
the ICC comes into picture once again. This is the second stage
mentioned in O.M. dated 16.07.2015. The provisions regarding
appointment of Presenting Officer and the Defence Assistant also
become applicable. This is the only interpretation possible on
combined reading of the O.M. dated 16.07.2015, Act of 2013 and
the CCS (CCA) Rules. The Internal Committee does not have the
power to proceed with formal/regular inquiry on its own. It will be
appropriate to refer to (2020) 13 SCC 56, titled Nisha Priya
Bhatia Vs. Union of India and another, wherein following was
observed in respect of fact finding inquiry by the ICC followed by
conduct of regular inquiry :-
"95. Be that as it may, in our opinion, the petitioner
seems to have confused two separate inquiries
conducted under two separate dispensations as one
.
cohesive process. The legal machinery to deal with the
complaints of sexual harassment at workplace is well
delineated by the enactment of The Sexual Harassment
of Women at Workplace Act, 2013 (hereinafter "2013
Act") and the Rules framed thereunder. There can be
no departure whatsoever from the procedure
prescribed under the 2013 Act and Sexual Harassment
of Women at Workplace (Prevention, Prohibition and
Redressal) Rules, 2013 (for short, "the 2013 Rules"),
either in matters of complaint or of inquiry thereunder.
The sanctity of such procedure stands undisputed. The
inquiry under the 2013 Act is a separate inquiry of a
fact-finding nature. Post the conduct of a fact-finding
inquiry under the 2013 Act, the matter goes before the
department for a departmental inquiry under the
relevant departmental rules [CCS (CCA) Rules in the
present case] and accordingly, action follows. The said
departmental inquiry is in the nature of an in-house
mechanism wherein the participants are restricted and
concerns of locus are strict and precise. The ambit of
such inquiry is strictly confined between the delinquent
employee and the concerned department having due
regard to confidentiality of the procedure. The two
inquiries cannot be mixed up with each other and
similar procedural standards cannot be prescribed for
both. In matters of departmental inquiries, prosecution,
penalties, proceedings, action on inquiry report,
.
appeals etc. in connection with the conduct of the
government servants, the CCS (CCA) Rules operate as
a self-contained code for any departmental action and
unless an existing rule is challenged before this Court
on permissible grounds, we think, it is unnecessary for
this Court to dilate any further."
8(iv) The SOP cannot override either the CCS(CCA)
Rules or the provisions of Act of 2013 or the Office Memorandum
issued by Government of India on 16.05.2015, which is also
applicable to the respondents in terms of Circular dated
26.06.2019. Under the Act, the inquiry by ICC is to be completed
within a period of 90 days. Formal inquiry/regular inquiry can be
conducted after the issuance of charge sheet by the disciplinary
authority under Rule 14 of CCS (CCA) Rules. In case the
procedure laid down in para 7(a) of the SOP is followed in terms
of interpretation given by the respondents, then in case of State
Gazetted Police Service Officer, the disciplinary authority will
come into picture only after completion of formal inquiry by the
ICC, which would be in absolute derogation to the provisions of
not only the Act of 2013, but also CCS(CCA) Rules and the
detailed guidelines dated 16.07.2015 issued by Government of
India. It is not the case of the respondents that they can conduct
the inquiry against the petitioner into the complaint dehors the
provisions of CCS(CCA) Rules, Act of 2013, the Office
.
Memorandum dated 16.07.2015 and the Circular dated
26.06.2019. It is not and even otherwise also cannot be the case
of the respondents that after conclusion of the present formal
inquiry being conducted against the petitioner by the ICC, the
matter will go to the disciplinary authority and that the disciplinary
authority will then direct issuance of charge sheet to the petitioner
followed by another regular departmental inquiry. This is because
as per para 7(a)(xix) and para 4 of SOP, after conclusion of
inquiry by the ICC, the matter goes to disciplinary authority for
awarding punishment. A conjoint and holistic reading of the Act of
2013, the CCS(CCA) Rules, 1965, the O.M. dated 16.07.2015
issued by Government of India, the Circular dated 26.06.2019
issued by respondent-State and the SOP leads to only one
conclusion that the ICC has no authority to issue the impugned
memorandum dated 28.05.2021 to the petitioner. In case the ICC
has not completed the fact finding inquiry, then it is entitled to
complete the same but in accordance with law. However, in case
the ICC has already concluded the fact finding inquiry against the
petitioner, then it is required to send the fact finding inquiry report
to the disciplinary authority. It is for the disciplinary authority to
examine the fact finding report to decide whether to issue charge
.
sheet to the petitioner or not. It is the disciplinary authority which
can issue the charge sheet to the petitioner under Rule 14 of
CCS(CCA) Rules. After examining the reply of the petitioner to
the charge sheet, it is for the disciplinary authority to decide
whether to proceed with formal inquiry against the petitioner. The
ICC will come into picture once again only if disciplinary authority
decides to hold formal inquiry against the petitioner. If that course
is adopted by the disciplinary authority, then the matter will be
once again referred to the ICC which is the inquiring authority in
terms of Act of 2013, CCS(CCA) Rules and the O.M. dated
16.07.2015. The ICC at this second stage of coming into picture
will hold the inquiry as per provisions of CCS (CCA) Rules as the
petitioner is a Gazetted State Police Service Officer governed by
CCS (CCA) Rules, 1965 for disciplinary purposes.
In view of above discussion, it is held that the Internal
Complaints Committee had no authority to issue the
memorandum dated 28.05.2021 to the petitioner. This writ
petition is allowed. The impugned memorandum dated
28.05.2021 (Annexure P-3) is quashed and set aside. It will be
open for the respondents to proceed against the petitioner in
accordance with law, keeping in view the observations made
above. Pending applications, if any, also stand disposed off.
.
10th September, 2021 (K) ( Jyotsna Rewal Dua )
Judge
r to
