Dr. B.K. Sinha, Member (A):
1. The lone issue that compels consideration from us in the instant Original Application is as follows:-
Whether the enquiry conducted under sub-rule (2) of Rule 14 of Central Civil Services (Control, Classification and Appeal) Rules, 1965 is vitiated by the mere fact that conduct of the enquiry by the Complaints Committee on Sexual Harassment of Women at Workplace has not been sanctioned by the disciplinary authority.
2. The case in very brief is that the applicant is posted as Joint Advisor (Water Resources) in the Planning Commission. The next higher post in the hierarchy of Planning Commission, being that of Advisor (Water Resources), was due to fall vacant on 16.03.2013. The applicant having an outstanding service record in the Planning Commission was an obvious aspirant to this post and had also been recommended by the Selection Committee/DPC which met on 11.04.2013 following the scrutiny of the service records and interview. Being a Group-A service, the recommendation of the DPC is required to be approved by the ACC prior to appointment. In the meantime, one Vandana Sharma, who had worked as a Senior Research Officer when the applicant was posted as Deputy Director (Water Resources), was promoted on ad hoc basis as Deputy Advisor (Water Resources) on 11.02.2013. It is the contention of the applicant that though the order requiring the said Vandana Sharma to report to the applicant was issued only on 01.03.2013, she on her own volition reported to the applicant w.e.f. 12.02.2013 i.e. from the next day of her ad hoc promotion. Significantly, the applicant wishes to draw our attention to the fact that for the last three years i.e. from January 2010 to 11.02.2013, the said Vandana Sharma had not been reporting to the applicant though she had been working in the Planning Commission in the same premises.
3. The learned counsel for the applicant submits that precisely ten days after her suo motu reporting to the applicant, the said Vandana Sharma made a written complaint on 27.02.2013 against the applicant alleging harassment at workplace. This complaint dated 27.02.2013 was made even before the official order asking her to report to the applicant was issued on 01.03.2013. The initial complaint, learned counsel for the applicant contends, did not allege any sexual harassment but was related simply to harassment at workplace. However, she made a second complaint on 14.03.2013 to improve the contents of her initial complaint citing more instances for the alleged acts of harassment. The learned counsel for the applicant further submits that the said Vandana Sharma had interacted with the applicant only for four days when the initial complaint was made on 27.02.2013 which fact has not been disputed in the counter affidavit filed on behalf of the respondents. The rest of the 16 days were spent by the said Vandana Sharma either on holidays or the applicant being on leave leading to the fact that there was no official occasion for interaction.
4. Admittedly, both the complaints were referred to the Complaints Committee on Sexual Harassment of Women at Workplace to deal with the alleged acts. The Complaints Committee had given notice to the applicant to appear before it on 01.05.2013. A report adverse to the applicant has already been submitted but neither a copy thereof was provided to him to that date nor has the promotion been finalized because of the so-called report of the Complaints Committee. The applicant in support of his claim has urged the following grounds:-
The complaints filed by the said Vandana Sharma do not make out the ingredients of sexual harassment.
The complaints against the applicant made by said Vandana Sharma were referred to the Complaints Committee by an incompetent authority that being the Secretary of the Planning Commission whereas the Honble Prime Minister being the Minister-in-Charge is the disciplinary authority in this case and the reference would only have been made with his prior sanction.
The satisfaction of the disciplinary authority is an essential pre-requisite for initiation of enquiry against any government servant under Rule 14 of the CCS (CCA) Rules, 1965 [hereinafter referred to as Rules, 1965] which is missing in this case.
The complaints are false and have been made maliciously with ulterior motive to upstage the applicant to the post of Advisor (Water Resources) at the earliest.
There was no time for such complaints to develop as during the period the said Vandana Sharma had worked effectively under the applicant was indeed a limited one and so many instances of harassment as alleged could not have taken place during this short a period.
5. The respondents have filed their counter affidavit rebutting the points raised in the Original Application. As per sub-rule (2) of Rule 14 of Rules, 1965, the Complaints Committee has been constituted in the Planning Commission for enquiring into the complaints of sexual harassment at workplace and it has been deemed to be an inquiring authority appointed by the disciplinary authority. As per the prevalent practice in the organization, the complaints relating to sexual harassment are forwarded to the Complaints Committee for being enquired into while no formal chargesheet is issued. The report of the Complaints Committee is regarded as the report of the Inquiring Authority and further action is taken as per the extant rules. The report of the enquiring authority had been received and is under submission for consideration of the disciplinary authority as per Rule 15 of the Rules ibid. The learned counsel for the respondents submitted that in case the disciplinary authority accepts the report, an opportunity would be given to the applicant to make his written representation by taking objections, if any, to the said report of the Complaints Committee. Since the report of the Complaints Committee is under consideration and is yet to be accepted by the disciplinary authority, the instant OA is premature. The respondents have further submitted that no prejudice has been caused against the applicant and the Vigilance Wing of the Planning Commission has already issued the integrity certificate in respect of his promotion. This leads the applicant with no cause of action and the OA has been prematurely instituted for that matter. The learned counsel for the respondents has, therefore, prayed for dismissal of the instant OA.
6. During the course of arguments, the learned counsel for the applicant pressed the only issue of the enquiry by the Complaints Committee being vitiated on account of not having prior sanction of the disciplinary authority and has foregone other grounds. The applicant has also submitted a rejoinder application in which he has submitted that the power of referral to the Complaints Committee is a safeguard specifically vested with the disciplinary authority alone provided to the holder of a civil post under Article 311 of the Constitution of India. These powers are not subject to delegation. This defect also goes to the very root of the matter and is incurable. The applicant, on the grounds mentioned above, has prayed for the following relief(s):-
8.1 To call for the records of the case;
8.2 to allow the present Application;
8.3 to quash and set aside the Reference dated 03.04.2013 by Respondent no.1 to the Complaints Committee on Sexual Harassment, forwarding therewith two Complaints dated 27.02.2013 and 14.03.2013 of Smt. Vandana Sharma [second document of Annexure: A-1 (Colly)] as being illegal and bad in law with all its consequences;
8.3 to direct the respondent commission to produce the copy of the Report, if any, of the Complaints Committee on Sexual Harassment with regard to the Reference dated 03.04.2013 by Respondent No.1 and on such production quash and set aside the same with all its consequences;
8.4 to direct that the respondents to give all consequential benefits to the applicant;
8.5 to allow exemplary costs of the application; and
8.6 to issue any such and further order/directions this Honble Tribunal deems fit and proper in the facts and circumstances of the case.
7. We have carefully examined the pleadings as also the documents submitted and the oral submissions of the rival parties. Taking the afore into consideration, we take up the lone issue for adjudication.
8. Rule 11 of the Rules, 1965 provides for two groups of penalties (i) to (iv) which have by nature been classified as minor penalties and (v) to (ix) which have been treated as major penalties. Rule 12 of the same Rules empowers vide its sub-rule (1) the President to impose any of the penalties specified in Rule 11 on any government servant. Sub-rule (2) of the same Rule further provides that the President may by a general or special order empower the appointing authority of a Central Civil Service other than the General Central Service or any other authority to impose such punishment and in case of a Central Civil Service post, by the appointing authority or an officer so designated. The MHA vide its Memorandum dated 16.04.1969 provided a solution to some of the frequently referred questions in this regard, which are as under:-
1. Points raised Clarification (a) In case where the disciplinary authority is the President, whether the case should be shown to the Minister before disciplinary proceedings are initiated. (a) Having regard to the Transaction of Business Rules, it is necessary that in cases where the disciplinary authority is the President, the initiation of the disciplinary proceedings should be approved by the Minister. (b) Whether it is necessary to show the file to the Minister every time before formal orders are issued in the name of the President under Rules 14(2), 14(4), 14(5), etc., of the CCS (CCA) Rules?(b) It would be sufficient if Ministers orders are obtained for taking action ancillary to the issue of the chargesheet at the stage when the papers are put up to him for initiation of disciplinary proceedings. However, formal orders of the Minister should be obtained at the stage of show-cause notice under Rule 15(4) (i) (b) and at the stage of issuing final orders imposing penalty under Rule 15(4) (iii). 9. The first question that we require ourselves to answer is that as to who is the disciplinary authority competent to pass orders in respect of the applicant. Admittedly, the applicant joined service as Research Officer, a Group A post under the Union Government, on the basis of a direct recruitment conducted by the Union Public Service Commission in 1991. He has since been promoted to the posts of Senior Research Officer, Deputy Advisor (WR) and Joint Advisor (WR) through interview process conducted by the UPSC. We have perused the official file bearing File No.C-13011/01/2013-Vig. submitted by the respondents wherein it is clearly mentioned in Note dated 12.07.2013 that the Honble Prime Minister being the Minister-in-Charge is also the disciplinary authority on behalf of the President. In view of this stated and admitted position, there needs to be no controversy over this point.
10. A three judges Bench of Honble Supreme Court, while delivering a landmark judgment in the matter of Vishaka and others Versus State of Rajasthan and Others [1997 (6) SCC 241], provided for creation of a complaint mechanism, which reads as follows:-
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 redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
In its para 7, the order further lays down as under:-
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 undue 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.
11. The order went ahead to direct that the guidelines and norms provided be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. Accordingly, changes were introduced in the Rules, 1965 vide proviso (i) and (ii) to sub-rule 2 of Rule 14.12. The applicant in support of his claim has placed reliance on the judgment of Honble Supreme Court in the case of Union of India and Others versus B.V. Gopinath [2013(11) SCALE 162] wherein the respondent had joined Indian Revenue Service in 1987 as Assistant Commissioner of Income Tax and was subsequently promoted to the posts of Deputy Commissioner, Joint Commissioner and Additional Commissioner of Income Tax. On 07/08.09.2005 while working on the post of Additional Commissioner of Income Tax, the respondent was served with a chargesheet under Rule 14 of the Rules, 1965 on the allegation that in 2003 he approached one Chartered Accountant in Chennai for securing his transfer to Mumbai by offering bribe to the P.A. to the then Minister of State (Revenue). Thereby, the charge leveled against the respondent was that he failed to maintain integrity and exhibited a conduct which is unbecoming of a government servant. During the pendency of the proceedings, the respondent filed OA No.800 of 2008 claiming that the chargesheet dated 7th/8th September, 2005 being without jurisdiction was liable to be quashed as the Charge Memo had not been approved by the Finance Minister. The Tribunal quashed the chargesheet vide its order dated 05.02.2009 as there was nothing on record to show that the Finance Minister had actually approved the chargesheet. The said order came to be challenged before the Honble High Court which was pleased to dismiss the writ petition. Aggrieved, the appellants approached the Honble Supreme Court on the ground that the Honble High Court had wrongly drawn distinction between approval for initiation of departmental proceedings and approval for initiation of charge memo by treating them as two different steps. It was further submitted on behalf of the State that the charge sheet was not to be normally quashed unless prejudice was to be alleged and established. The ASG appearing on behalf of the State further submitted that it was not necessary that the charges should be framed by the disciplinary authority to impose penalty or that enquiry should be conducted by such authority alone relying upon the judgment of Honble Supreme Court in the matter of Inspector General of Police and Another versus Thavasiappan [1996 (2) SCC 145]. The argument was also adopted that Rule 14 of the Rules, 1965 stipulates that once the initiation of departmental proceeding has been approved by the disciplinary authority, it is for the other authority subordinate to him to take rest of the steps except when it comes to passing of the final order under Rule 15 (4) of the Rules, 1965. In this regard, para nos.45 and 46 of the judgment of Honble Supreme Court in the matter of Union of India and Others versus B.V. Gopinath (supra) are worthwhile extracting which read as under:-
45. Much was sought to be made by Ms. Indira Jaising on clause (10) of the order which provides that once the Finance Minister has approved the initiation of departmental proceedings, the ancillary action can be initiated by the CVO. According to the learned Addl. Solicitor General, the decision taken by the Finance Minister would also include the decision for approval of charge memo. She pointed out the procedure followed for initiation of penalty proceedings/disciplinary proceedings. She submitted that the decision to initiate disciplinary proceedings is based on a Satisfaction Memo prepared by the CVO. This satisfaction memo is submitted to the Member (PandV), Central Board of Direct Taxes, New Delhi who after being satisfied that the memo is in order, forwards it to the Chairman, CBDT who in turn, upon his own satisfaction forwards it to Secretary (Revenue) and finally to the Finance Minister. Based on the satisfaction memo, the Finance Minister, who is the disciplinary authority in this case, takes the decision to initiate disciplinary proceedings. While taking the said decision, the Finance Minister has before him, the details of the alleged misconduct with the relevant materials regarding the imputation of allegations based on which the charge memo was issued. Therefore, approval by the Finance Minister for initiation of the departmental proceedings would also cover the approval of the charge memo. We are unable to accept the submission of the learned Addl. Solicitor General. Initially, when the file comes to the Finance Minister, it is only to take a decision in principle as to whether departmental proceedings ought to be initiated against the officer. Clause (11) deals with reference to CVC for second stage advice. In case of proposal for major penalties, the decision is to be taken by the Finance Minister. Similarly, under Clause (12) reconsideration of CVCs second stage advice is to be taken by the Finance Minister. All further proceedings including approval for referring the case to DOP and T, issuance of show cause notice in case of disagreement with the enquiry officer report; tentative decision after CVCs second stage advice on imposition of penalty; final decision of penalty; and revision/review/memorial have to be taken by the Finance Minister. In our opinion, the Central Administrative Tribunal as well as the High Court has correctly interpreted the provisions of the Office Order No. 205 of 2005. Factually also, a perusal of the record would show that the file was put up to the Finance Minister by the Director General of Income Tax (Vigilance) seeking the approval of the Finance Minister for sanctioning prosecution against one officer and for initiation of major penalty proceeding under Rule 3(1)(i) and (3) (1) (iii) of the Central Civil Services (Conduct) Rules against the officers mentioned in the note which included the appellant herein. Ultimately, it appears that the charge memo was not put up for approval by the Finance Minister. Therefore, it would not be possible to accept the submission of Ms. Indira Jaising that the approval granted by the Finance Minister for initiation of departmental proceedings would also amount to approval of the charge memo.
46. Ms. Indira Jaising also submitted that the purpose behind Article 311, Rule 14 and also the Office Order of 2005 is to ensure that only an authority that is not subordinate to the appointing authority takes disciplinary action and that rules of natural justice are complied with. According to the learned Addl. Solicitor General, the respondent is not claiming that rules of natural justice have been violated as the charge memo was not approved by the disciplinary authority. Therefore, according to the Addl. Solicitor General, the CAT as well as the High Court erred in quashing the charge sheet as no prejudice has been caused to the respondent. In our opinion, the submission of the learned Addl. Solicitor General is not factually correct. The primary submission of the respondent was that the charge sheet not having been issued by the disciplinary authority is without authority of law and, therefore, non est in the eye of law. This plea of the respondent has been accepted by the CAT as also by the High Court. The action has been taken against the respondent in Rule 14(3) of the CCS(CCA) Rules which enjoins the disciplinary authority to draw up or cause to be drawn up the substance of imputation of misconduct or misbehaviour into definite and distinct articles of charges. The term cause to be drawn up does not mean that the definite and distinct articles of charges once drawn up do not have to be approved by the disciplinary authority. The term cause to be drawn up merely refers to a delegation by the disciplinary authority to a subordinate authority to perform the task of drawing up substance of proposed definite and distinct articles of charge sheet. These proposed articles of charge would only be finalized upon approval by the disciplinary authority. Undoubtedly, this Court in the case of P.V.Srinivasa Sastry and Ors. Vs. Comptroller and Auditor General and Ors. has held that Article 311(1) does not say that even the departmental proceeding must be initiated only by the appointing authority. However, at the same time it is pointed out that However, it is open to Union of India or a State Government to make any rule prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority. It is further held that Any such rule shall not be inconsistent with Article 311 of the Constitution because it will amount to providing an additional safeguard or protection to the holders of a civil post.
13. We take note of the fact that Rule 14 of the Rules, 1965 contemplates a detailed procedure to be completed before awarding any punishment including the following four steps:-
initiation of departmental proceedings for major penalties; drawing up of charges of misconduct; appointment of enquiry officer and presenting officer; and to supervise their conduct on enquiry by the enquiry officer and imposition of penalty, if any.
Each of these steps requires application of mind of the disciplinary authority. In the first stage, the disciplinary authority has to apply its mind as to whether there is justification for initiation of departmental proceedings against a government servant. It further involves the decision that whether the enquiry would be conducted by the disciplinary authority himself or by some other enquiry officer. Where the disciplinary authority comes to conclusion that charges are not such which may warrant enquiry that would be the end of the matter and no disciplinary proceedings would initiate. Likewise, in the second stage of drawing up of a chargesheet has to be drawn up by the disciplinary authority, he has to apply his mind on the charges framed under Rule 14(3) of the Rules, 1965. Of course, there is no gainsaying that the punishment would require full application of mind on part of the disciplinary authority alone taking various facts into consideration e.g the degree of the charges so framed and proved, the circumstances under which the alleged charges had been committed, the gravity of the charges, extenuating circumstances, if any, and the proportionality of the punishment to be awarded. In this regard, the learned counsel for the applicant has relied upon the following judgments of the Honble Supreme Court:-Sardar Harcharan Singh Brar v. Sukh Darshan Singh [2004 (11) SCC 196]. Regu Mahesh alias Regu Maheswar Rao v. Rajendra Pratap Bhanj Dev and another [2004 (1) SCC 46]. G. Mallikarjunappa and Another v. Shamanur Shivashankarappa and Others [2001 (4) SCC 428]. Navinchandra N. Majithia v. State of Maharasthra [2000 (7) SCC 640]. B.K. Srinivasan v. State of Karnataka [1987 (1) SCC 658].
14. Per contra, the respondents have submitted that what has been assailed is a procedural lacuna and the same cannot be allowed to defeat the very object of the Rules that being to provide justice to a lady who has suffered sexual harassment at the workplace. The respondents have been following this procedure that all such complaints of sexual harassment are referred to the Complaints Committee for Sexual Harassment at the first instance. The report of the Complaints Committee is put up before the disciplinary authority for initiation of the departmental proceedings as per the prevalent law. It was further argued that to take such a step would be tantamount to putting a cart before the horse.
15. We now first take up what constitutes a curable defect. In the case of Sardar Harcharan Singh Brar v. Sukh Darshan Singh (supra) the appellants had challenged the dismissal of election petition at the threshold without having heard and decided on merit on the ground that it had failed to comply with the provisions of Sections 81, 82 or 117, which provide for presentation of petition, parties to the petition and security for cost. The Honble Supreme Court relying upon the decision in the matter of Raj Narain Vs. Smt. Indira Nehru Gandhi and another (1972) 3 SCC 850 echoed in the form of a note of caution: "Rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated with a game of chess. Provisions of law are not mere formulae to be observed as rituals. Beneath the words of a provision of law, generally speaking there lies a juristic principle. It is the duty of the court to ascertain that principle and implement it." The same principle has been reiterated in the matters of Regu Mahesh alias Regu Maheswar Rao v. Rajendra Pratap Bhanj Dev and another (supra) and G. Mallikarjunappa and Another v. Shamanur Shivashankarappa and Others (supra). The decision in Navinchandra N. Majithia v. State of Maharasthra (supra) relates to the territorial jurisdiction of the High Court and is not applicable to the facts of the instant case. The case of B.K. Srinivasan v. State of Karnataka (supra) relates to development of Raj Mahal Vilas Extension and the same is also not at all relevant to the facts of the case in hand.
16. In the case of Uday Shankar Triyar V. Ram Kalewar Prasad Singh (supra) the facts are that the landlord filed an eviction suit against one Anugraha Narayan Singh and the District Congress Committee (I), Samastipur on the ground that the suit premises was let out to A. N. Singh beyond the terms of the agreement. The trial court decreed the suit vide its judgment dated 06.06.1998 directing eviction and payment of arrears of rent and electricity charges on the ground that A.N. Singh took the premises on rent in his personal capacity and not on behalf of DCC; and that a portion of the suit premises was sub-let to DCC without the consent of the landlord. The defendant Ram Kalewar Prasad Singh, claiming to be the 'Working President' of DCC, filed an application before the Honble High Court of Patna challenging the judgment of the Trial Court to delete the first appellant and show DCC as the sole appellant and also to substitute the words 'Working President' in place of 'former President' as the person representing DCC. The said application for substitution was allowed by the Single Judge of the High Court. Honble Supreme Court, while considering the matter, laid down the following principles on which such issues are to be decided:-
17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are:
(i) where the Statute prescribing the procedure, also prescribes specifically the consequence of non-compliance.
(ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
(iii) where the non-compliance or violation is proved to be deliberate or mischievous;
(iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court.
(v) in case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.
17. We take the clue from here and examine the matter on the touchstone of the principles of justice, the provisions laid down in Rule 14 (2) and the judgment in the case of Vishaka and others Versus State of Rajasthan and Others (supra). The first touchstone is that whether the statute prescribing a procedure specifically provided the consequences of non-compliance. In this regard, it is to be noted that the proviso (ii) to Rule 14 of the Rules, 1965 is qualified by the clause as far as practicable and in accordance with the procedures laid down in these rules. It is also significant to note that clause (2) does not provide the consequence of non-compliance with the provision. Had Rule 14 specifically provided that the sanction of the disciplinary authority was mandatory, the entire proceedings would have been vitiated beyond salvage. Instead, the use of the term as far as practicable in accordance with the procedure laid down in these rules clearly stipulates that there are occasions for deviation from these rules.18. We have to tarry here and ponder as to why this qualifying clause has been incorporated in the proviso (ii) to sub rule 2. The only thing that we can think of at present is that the facts of the case in Vishaka and others Versus State of Rajasthan and Others (supra) were so horrifying that the Honble Supreme Court was compelled to consider the entire issue with the safety of women at workplaces. The Honble Supreme Court, in the absence of domestic law occupying the field, directed to formulate effective measures to check the evil of sexual harassment of working women at all work places. The contents of International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Arts. 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Therefore, while the case had been adjudicated under the terms of Article 32 for enforcement of the fundamental rights, the Honble Supreme Court was particular to declare that this should be treated as law declared by it under Article 141 of the Constitution. Therefore, the proviso to sub-rule 2 of Rule 14 of the Rules, 1965 takes birth from the judgment of Honble Supreme Court in the case of Vishaka and others Versus State of Rajasthan and Others (supra) and is to be interpreted in the same line.
19. It is to be pondered here that the matter was further considered in the case of Medha Kotwal Lele and Others versus Union of India and Others [2013(1) SCC 297] along with earlier decisions in Seema Lepcha v. State of Sikkim and Ors. [Petition for Special Leave to Appeal (Civil) No. 34153/2010 decided on 3.2.2012] and Vishaka and others Versus State of Rajasthan and Others (supra). The Honble Supreme Court took note of the fact that law had been laid down in Vishaka and others Versus State of Rajasthan and Others (supra) under Article 141 but The Protection of Women Against Sexual Harassment at Work Place Bill, 2010 was still pending and had not been passed. However, the Honble Supreme Court held as under:-
44.4. The State functionaries and private and public sector undertakings/ organisations/ bodies/institutions etc. shall put in place sufficient mechanism to ensure full implementation of the Vishaka guidelines and further provide that if the alleged harasser is found guilty, the complainant - victim is not forced to work with/under such harasser and where appropriate and possible the alleged harasser should be transferred. Further provision should be made that harassment and intimidation of witnesses and the complainants shall be met with severe disciplinary action.
As per the directives of the Honble Supreme Court in the matters of Vishaka and others Versus State of Rajasthan and Others (supra) and Medha Kotwal Lele and Others versus Union of India and Others (supra), the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [hereinafter referred to as Sexual Harassment Act, 2013] has been passed with the objectives as laid down in the preamble to the Act, which reads as under:-
PREAMBLE
An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.
Whereas sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment;
And WHEREAS the protection against sexual harassment and the right to work with dignity are universally recognised human rights by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on the 25th June, 1993 by the Government of India;
And whereas it is expedient to make provisions for giving effect to the said Convention for protection of women against sexual harassment at workplace.
20. This Act extends to whole of India and was notified to come into effect as the Central Government by Notification provide. Accordingly, the Act has been notified on 23rd of April, 2013 in an extraordinary issue of the Gazette of India. Section 9(1) of this Act grants liberty to the aggrieved woman to make a complaint in writing to sexual harassment at workplace directly to the Internal Committee, if so constituted, within a period of three months from the date of incident. For the sake of convenience, the relevant provision of the Act is being extracted as under:-
9 (1). Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident:
Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing:
Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit not exceeding three months, if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.
21. Under Section 13(1) of the Act, the Internal Committee shall provide a report of its findings to the employer within ten days from the date of completion of enquiry. Where the Internal Committee arrives at conclusion that the allegation against the respondent have not been proved it shall recommend the employer that no action is required to be taken but where it finds the allegations proved it shall recommend to take action against the errant employee in accordance with the provisions of the rules applicable to him and the employer is bound to act on the recommendations. For the sake of convenience, relevant provisions of the Act are reproduced hereunder:-
13 (1). On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties.
(2) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter.
(3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be--
(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;
(ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section 15:
Provided that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman:
Provided further that in case the respondent fails to pay the sum referred to in clause (ii), the Internal Committee or, as the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.
22. The question would now arise as to whether since the alleged act of sexual harassment is alleged to have taken place in February, 2013 when the Sexual Harassment Act, 2013 was not in force, the matter would be governed by the said Act or not. Once the Sexual Harassment Act, 2013 has been promulgated and notified in the Gazette, it comes into force. Like all other Acts, it has only prospective application. However, the fact to be noted is that there is no requirement in this Act for the prior approval of the appointing authority to commence the enquiry. The mechanism that has been provided is that an aggrieved woman is directly competent to file a complaint to the Internal Inquiry Committee. This provision has been made deliberately in order to avoid delay and to ensure speedy redressal of grievance to the aggrieved woman.
23. Here in the instant case, we take note of the fact that what has been laid down in the case of Vishaka and others Versus State of Rajasthan and Others (supra) is the law as it has been specifically directed by the Honble Supreme Court. Any changes in rules or even legislation made contrary to this are rendered null and void ipso facto.
24. The first question to be considered here is whether there is any contradiction between the order provided in Vishaka and others Versus State of Rajasthan and Others (supra) and sub rule (2) of Rule 14 of the Rules, 1965. Here it is to be noted that the main provision of sub-rule (2) is an independent provision where the requirement of prior sanction of the disciplinary authority has been made a sine qua non. Any deviation from this would render the proceedings non est. This is also supported by the case of Union of India and Others versus B.V. Gopinath (supra). However, the proviso to sub rule (2) is an exception to this Rule. The proviso does not provide anywhere for the prior sanction of the disciplinary authority. This is in conformity with the law laid down by the Honble Supreme Court in Vishaka and others Versus State of Rajasthan and Others (supra).The use of phrase as far as practicableof course governs the later enquiry but at the same time indicates a deviation from the procedures laid down in the rules. This gives rise to the presumption that the prior sanction of the disciplinary authority has been done away with in cases of sexual harassment of women at workplace.
25.It has already been discussed above that the Sexual Harassment Act, 2013 does not contain the clause of the requirement of prior approval of the disciplinary authority prior to reference of the matter to the Internal Inquiry Committee. This Act has been framed in accordance with law laid down by the Honble Supreme Court in the case of Vishaka and others Versus State of Rajasthan and Others (supra).
26. We also pause here to consider why this law has been laid down by the Honble Supreme the way that it has been. What probably weighed in the minds of their Lordships in the case of Vishaka and others Versus State of Rajasthan and Others (supra) was that once a complaint has been made so many forces would rally behind the employee against whom the allegations have been made particularly when he appears to be a senior officer. Besides, with passage of time the element of social stigma would also take over diluting quest for justice. We could take one example. Suppose allegations of sexual harassment were to made against the Private Secretary to the disciplinary authority. Under normal circumstances, the attitude of the disciplinary would be one of disbelief. Hence, the judgment in Vishaka and others Versus State of Rajasthan and Others (supra) does not provide for prior sanction nor does the Act framed from where the proviso to sub-rule (2) to Rule 14 also takes birth. Hence, this leads to inescapable conclusion that there is requirement of prior sanction of the disciplinary authority for referral to the Complaints Committee/Internal Inquiry Committee and that there is no contradiction between the main provision of sub-rule (2) to Rule 14 and its proviso or its Explanation. We do not undertake any discussion on other issues raised in the form of the oral submissions of the applicant confining his case to the lone issue as framed above.
27. In view of the afore discussions, we abide by our inescapable conclusion that not taking the prior sanction of the disciplinary authority which in this case being the Honble Prime Minister of India is not an infirmity which serves to vitiate the departmental proceedings. The challenge to the main order therefore quells. Resultantly, the instant OA is dismissed on this account as being devoid of merit without there being any order as to costs.