Dr. Rajesh Malik vs All India Institute Of Medical ...
2023 Latest Caselaw 12377 MP

                          1                        MP-2664 of 2023




     IN THE HIGH COURT OF MADHYA PRADESH
                  AT JABALPUR
                         BEFORE
          HON'BLE SHRI JUSTICE SHEEL NAGU
                              &
            HON'BLE SHRI JUSTICE HIRDESH
             MISC. PETITION No.2664 of 2023
BETWEEN:-

DR. RAJESH MALIK S/O LATE JUSTICE M.L MALIK,
AGED ABOUT 60 YEARS, OCCUPATION: PROFESSOR
AND HEAD OF RADIODIAGNOSIS AND DEAN
(ACADEMICS) ALL INDIA INSTITUTE OF MEDICAL
SCIENCES, BHOPAL - 462020, R/O E-1/2, ARERA
COLONY BHOPAL (M.P) - 462016 (M.P.),
                                                   .....PETITIONER

(BY SHRI N.S. RUPRAH - ADVOCATE )

AND

1.     ALL INDIA INSTITUTE OF MEDICAL SCIENCES,
       THROUGH ITS DIRECTOR, BHOPAL, SAKET
       NAGAR BHOPAL (M.P.) - 462020

2.     PRESIDENT, ALL INDIA INSTITUTE OF MEDICAL
       SCIENCES, BHOPAL SAKET NAGAR, BHOPAL -
       462020 (M.P.)

3.     DIRECTOR, ALL INDIA INSTITUTE OF MEDICAL
       SCIENCES, BHOPAL, SAKET NAGAR, BHOPAL -
       462020

4.     UNION OF INDIA, THROUGH THE SECRETARY,
       MINISTRY OF HEALTH AND FAMILY WELFARE,
       NIRMAN BHAWAN, NEW DELHI -110011

5.     CHAIRPERSON, INTERNAL  COMPLAINTS
       COMMITTEE, ALL INDIA INSTITUTE OF
                                          2                                  MP-2664 of 2023




             MEDICAL SCIENCES BHOPAL, SAKET NAGAR,
             BHOPAL - 462020 (M.P.)

      6.     PROF.(DR.) BHAVNA SHARMA, PROF. AND HEAD
             OF DEPARTMENT OF OPHTHALMOLOGY, ALL
             INDIA INSTITUTE OF MEDICAL SCIENCES,
             BHOPAL, SAKET NAGAR, BHOPAL (M.P.)

      7.     PROF.(DR.) ARNEET ARORA, PROF. AND HEAD
             OF DEPARTMENT OF FORENSIC MEDICINE AND
             TOXICOLOGY, ALL INDIA INSTITUTE OF
             MEDICAL SCIENCE, BHOPAL SAKET NAGAR,
             BHOPAL - 462020



                                                                       .....RESPONDENTS

      (RESPONDENT/CAVEATOR BY MRS. KANAK GAHARWAR-ADVOCATE )

      -----------------------------------------------------------------------------------------
      Reserved on                    :       12.05.2023
      Pronounced on                 :        03.08.2023

      ----------------------------------------------------------------------------------------

      This appeal having been heard and reserved for orders, coming on
for pronouncement this day, Hon'ble Shri Justice Sheel Nagu pronounced
the following:
                                         ORDER

Supervisory jurisdiction of this Court under Article 227 of the Constitution of India is invoked to assail the legality and validity of an interlocutory order passed on 4.5.2023 in O.A.No.418/2023 by Central Administrative Tribunal, Bench Jabalpur whereby the prayer of petitioner for interim relief has been declined while entertaining the OA in question by recording the following findings:

3 MP-2664 of 2023

"The case of the applicant is that he had earlier filed O.A.No.183/2021, which came to be dismissed by this Tribunal vide order dated 20.4.2023. After dismissal of O.A., the respondents passed an order dated 21.4.2023 whereby the punishment of 'Censure' has been awarded to the applicant basing upon the recommendations of ICC. Without filing an appeal before the said punishment order, the applicant knocked the door of this Tribunal with a prayer to stay the operation of order dated 21.4.2023.

On the other hand, learned counsel for the respondents submits that the punishment order is appealable and since the applicant has failed to file any appeal and as such the present OA is premature.

Considering the submissions of learned counsel for the parties, we are of the considered opinion that since the applicant has not filed an appeal against the punishment order, which is admittedly appealable and as such no case for grant of interim relief is made out.

Accordingly the prayer for interim relief is rejected."

2. Shri N.S. Ruprah, learned counsel for petitioner and Smt. Kanak Gaharwar, learned counsel for caveator are heard extensively.

3. Learned counsel for petitioner has taken us to the pleadings contained in the pending O.A.No.418/2023 and various documents attached thereto to contend that in the given facts and circumstances, the Tribunal ought to have granted the following interim relief prayed for by petitioner:

"Pending final decision, all the respondents be restrained from taking action against the 4 MP-2664 of 2023

applicant on the basis of the impugned order, Annexure A-1 dated 21.4.2023 whose operation and effect of, may kindly be stayed. This Hon'ble Court be further pleased to pass such other orders as it may deem fit under the circumstances of the case."

4. The interim prayer made before the Tribunal was of staying the order dated 21.4.2023 by which petitioner was inflicted minor penalty of 'Censure' on the basis of recommendation of the Internal Complaints Committee (ICC) of AIIMS, Bhopal.

5. The Internal Complaints Committee was constituted by AIIMS, Bhopal, pursuant to the law laid down by judgment of Apex Court in Vishakha & Ors. Vs. State of Rajasthan & Ors. (1997) 6 SCC 241 which later assumed statutory shape vide Sexual Harassment of Women at Workpalace (Prevention, Prohibition and Redressal) Act, 2013. 5.1 Pursuant to promulgation on 2013 Act Complaints Committees were constituted by all employers to deal with the menace of sexual harassment at workplace. As a necessary consequence the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for brevity 'CCA Rules') underwent change by insertion of proviso and Explanation 1 after Rule 14 (2) of the said CCA Rules, which are reproduced below for convenience and ready reference:

"(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof.

5 MP-2664 of 2023

["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."] EXPLANATION 1 - Where the disciplinary authority itself holds the inquiry, any reference in sub-rule (7) to sub-rule (20) and in sub-rule (22) to the inquiring authority shall be construed as a reference to the Disciplinary Authority."

(emphasis supplied) 5.2 The aforesaid amendment in Rule 14 reveals that the Complaints Committee constituted by every employer under the Act of 2013 was granted the status of inquiring authority appointed by disciplinary authority for the purpose of 1965 Rules. Meaning thereby that once the Complaints Committee conducts an enquiry and finds the alleged misconduct to be proved, the disciplinary authority without requirement of conducting a separate enquiry can lawfully pass an order of punishment or otherwise on the basis of recommendation of the Complaints Committee.

5.3 Admittedly, the impugned order of 'Censure' has been passed for and on behalf of the President of AIIMS, Bhopal.

5.4 The contention of learned counsel for petitioner is that the order of penalty of 'Censure' is said to be passed on preliminary report of the ICC. 5.5 On perusal of alleged preliminary enquiry report annexed at Page No.82 of the compilation, it appears that the same is a final report and 6 MP-2664 of 2023

therefore, in all probability the mention of expression 'preliminary enquiry report' found in impugned order of punishment of 'Censure' is a misnomer. Thus, the contention of learned counsel for petitioner that preliminary enquiry report of ICC cannot form basis for passing order of punishment of 'Censure', is untenable.

6. In view of above discussion, what comes out loud and clear is that the petitioner has approached the Tribunal without availing the remedy of appeal against an order of penalty of 'Censure', therefore the reason assigned by the Tribunal in declining grant of interim relief by impugned order dated 4.5.2023 in O.A.No.418/2023 cannot be an outcome of transgression or failure to exercise jurisdiction on the part of the Tribunal.

7. Accordingly, this Court declines interference and dismisses this petition with observation that none of the findings recorded in this order shall come in the way of petitioner to pursue the pending O.A.

8. With the aforesaid observation, miscellaneous petition stands dismissed.

                      (SHEEL NAGU)                                  (HIRDESH )
                        JUDGE                                         JUDGE

 P/

Digitally signed by MRS PREETI
TIWARI
Date: 2023.08.03 15:28:39 +05'30'