1. Shri Arup Kr. Biswas, Radiographer, Metal and Steel Factory, lchhapore, has filed this O.A. assailing the impugned order of penalty dt. 10.9.99 passed by the Disciplinary Authority and the impugned order dt. 16.8.2000 passed by the Appellate Authority confirming the punishment imposed by the Disciplinary Authority.
2. The applicant has challenged the said impugned orders on the ground that the departmental enquiry was held in complete violation of the principles of natural justice inasmuch as the Inquiry Officer failed to supply him copies of the statement of the witnesses who were likely to be examined in course of the proposed enquiry and those who had appeared at the preliminary enquiry before the Board of Enquiry; secondly, that the applicant was not supplied with the report of the preliminary enquiry although the Disciplinary Authority heavily relied upon the said preliminary enquiry report in dissenting with the findings of the Enquiry Officer; thirdly, that the Disciplinary Authority although had dissented with the findings of the Enquiry Officer, he did not follow the procedure laid down under Rule 15(2) of the CCS (CCA) Rules, 1965 inasmuch as he never communicated to the applicant the reasons for such disagreement while he forwarded the enquiry report to the applicant; and, fourthly, that he was not also given an opportunity of hearing before the Disciplinary Authority had disagreed with the findings of the enquiry report. Relying on the decisions in the case of Ashok Kumar and Ors. v. Commissioner of Delhi and Ors. 1992(1) ATJ 538 and in the case of Shoan Pal v. CST 1987(3) ATC 370 (Delhi), he submitted that the findings of the Disciplinary Authority were based on no evidence. His findings were based on mere surmise and conjectures. He has also submitted that the Disciplinary Authority had failed to consider the evidence to separate the grains from the chaff.
3. The respondents have opposed the application on all grounds. They have submitted that the disciplinary proceedings were carried out strictly in terms of the procedure as laid down under CCS (CCA) Rules, 1965. Alluding to the facts of the case i.e., the incident dated 3.2.97 when the applicant had in his wisdom taken X-ray of a lady patient without the aid and assistance of another female para-medical staff in the dark room closing the door of the X-ray room. They have further submitted that the case of misbehaviour and/or molestation of the female patient by the applicant had been proved during the enquiry, and, therefore, the applicant was rightly found to be guilty of misconduct as alleged in the charge-sheet served on him. They have further submitted that the Disciplinary Authority had not committed any error by sending a copy of the enquiry report to the applicant, first, in terms of Rule 15(1)(a) and then recording note of dissent in terms of Rule 15(2) by the Disciplinary Authority after considering the representation submitted by the applicant on the findings of the Enquiry Officer in terms of Rule 15(1)(b). They have further submitted that the applicant in his representation had failed to contest the logic recorded by the Disciplinary Authority in his note of dissent nor could he demolish any of the arguments recorded by the Disciplinary Authority in his order. The Disciplinary Authority had found enough evidence to come to the conclusion that the applicant had committed misconduct like sexual harassment while on duty which warranted exemplary punishment. The Appellate Authority was also very logical and fair in considering the appeal filed by the applicant. They have also repudiated the allegation that the order of the Appellate Authority was based on the report of the preliminary enquiry conducted by the Board of Enquiry. They have clarified that the Appellate Authority while narrating the incident of sexual harassment had simply stated that a Board of Enquiry was ordered to enquire into the circumstances leading to the said incident of attempted molestation of a female patient in the X-ray room on 3.2.97 and accordingly the applicant was placed under suspension. Except the said narration of the events, the Appellate Authority nowhere in his order had relied on the said report of the Board of Enquiry. Further relying on the judgment of the Apex Court in the case of Apparel Export Promotion Council v. A.K. Chopra 2000(1) SLJ 65 (SC) : 1999(1) SCSLJ 251 and the case of Vishaka v. State of Rajasthan and Ors. , they have submitted that the case of sexual harassment could be decided on probability of the commission of the act and not on the conclusive proof and that the Court should not indulge in misplaced sympathy in a case of sexual harassment.
4. We have heard the ld. Counsel for the parties and have perused the records placed before us. We have also perused the case laws relied on by the parties before us, viz.Apparel Export Promotion Council v. A.K. Chopra (2) Visakha and Ors. v. State of Rajasthan and Ors.
.
5. We would like to state at the outset that the scope of judicial enquiry is very limited in the disciplinary proceedings matters. We are aware that judicial review is not an appeal from the decision of the departmental authority. It is a review of the manner in which the decision was arrived at. We are also aware of the scope of judicial review is as enunciated by the Apex Court in the case of B.C.Chaturvedi v. UOI and Ors.
Judicial review is not an appeal from a decision but a review of the matter in which a decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. When an inquiry is conducted on charges of misconduct by a Public Servant, the Court/Tribunal is concerned to determine whether the enquiry was held by a Competent Officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence the authorities entrusted with the powers to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence....The Court/Tribunal in its power of judicial review does not act as Appellate Authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribed the mode inquiry or where the conclusion or the finding reached by the Disciplinary Authority is based on no evidence....
In the instant case, we are not only bound by the limitation of judicial review, we are also conscious that this is a case involving allegation of sexual harassment where the allegation needs to be looked at with great circumspection and not to get swayed by negligible discrepancies or narrow technicalities or dictionary meaning of the expression "molestation". We are also conscious of the direction of the Apex Court that Courts must examine the exact materials to determine the genuineness of the complaint.
6. The undisputed fact of the case is that the applicant had received a patient-one Smt. Renu Das, on 3.2.97 for chest X-ray when he was aware that his female colleague was not available in the X-ray room and that under the standing instruction of the Factory he was not supposed to take x-ray of any female patient unless he had with him a female attendant to take care of the female patient. It is also the admitted fact that the husband of the female patient, who had accompanied her, had left the room when the door of the X-ray room was closed. It is also a fact that the applicant had taken 10-15 minutes time for completing the test. It is also a fact that the female patient came up with allegation sometime after she had left the place with her husband.
7. The applicant in his representation dt. 15.1.99 after receipt of the charge-memo dt. 2.1.99, had pointed out to the Disciplinary Authority that one Shri S. Bhakta, a colleague of the applicant was in the X-ray room when the husband of the female patient had left the room, but Shri Bhakta had not been cited as a witness. He had further stated that Shri Bhakta being the only eye witness inside the X-ray room he should have been called as a witness. Further, he has drawn out notice to the procedural lapse that the Disciplinary Authority had never disclosed his intention to differ with the findings of the Enquiry Officer and thereby denying him opportunity to defend his case effectively. Lastly, he has also alleged that the Appellate Authority did not follow the procedure as laid down in Rule 27 of the CCS (CCA) Rules as the appellate order was not a speaking order and that it did not address any of the issues that the applicant had raised in his memo of appeal dt. 14.1.99, when not only caused serious prejudice to the interest of the applicant but also showed total bias and predetermined mind-set of the authorities. The manner in which the appeal was disposed of was also in violation of the Govt. instructions laid down in DOPT letter No. 101/2/80-Disc-II dt. 1.4.80.
8. The allegations brought against the applicant are two fold. First, that he had willfully misbehaved with a female patient who went to the X-ray room for undergoing chest X-ray. The allegation of molestation is also being hinted although not explicitly made out either in the statement of Articles of charge or in the statement of imputation of misconduct. The violation of the provision of Rule 15(2) stares at the face and the order of the Appellate Authority is cryptic and that the Appellate Authority's decision appears to be based more on the findings of the Board of Enquiry, a document which was never made part of the documents listed for proving the allegations brought against the applicant. We have no doubt that the procedural flaws that had been pointed out by the applicant in his application are valid and the respondents have not been able to come out clean on any of these rssues. There is lot of force in the submission made by the applicant in his written application filed on receipt of the charge-sheet that Shri Bhakta who was an eye witness in the X-ray room on that fateful day should have been cited as a witness by the prosecution. However, we see no reason why if the prosecution did not call him as a witness, the applicant did not call him as defence witness to prove his innocence.
What, however, the applicant has not been able to come clear is why he had decided to carry on with the chest x-ray of the femaie patient when he was aware that the standing instruction imposes condition on him that he should not take X-ray test of any female patient without the presence of the female attendant and a female attendant was posted in the X-ray Deptt. for that purpose. In his defence the applicant has submitted that had he waited for the female attendant both the female patient and her husband would have become unhappy with him and would have complained against him and therefore he decided to go ahead. We are not impressed by this argument. We are also not impressed why he had allowed the husband of the female patient to go out of the X-ray room if at all there was urgency to attend to the female patient.
9A. It is, however, worthwhile to note the allegation of the applicant that the Disciplinary Authority recorded his note of dissent on the enquiry report only after receipt of the representation of the applicant. By doing so, he had contravened the provision of Rule 15(2) of the CCS (CCA) Rules, 1965. We find lot of force in the argument of the applicant relying on the decision in the case of M.S. Halwe v. UOl and Ors. 1995(1) ATJ 32 that where finding of the Enquiry Officer has not been accepted by the Disciplinary Authority he should give an opportunity of hearing to the delinquent where he was proposing not to accept the finding of the Enquiry Officer. The Disciplinary Authority undoubtedly had denied reasonable opportunity to the applicant by recording his note of dissent without making his dissent note first available to the delinquent official. Such an infringement of the rules results in denial of natural justice which undoubtedly is fatal to the defence of the delinquent. Furthermore, it is nov well settled law that public probity demands that if a procedure is laid down it is forbidden to do it differently. We would refer to the decisions of the Apex Court in the case of Ramchandra Keshav Adke v. Govind Joti Chavare and Ors.
, Taylor v. Taylor (1875) 1 Ch.D 426, Deep Chand\.
10. For the reason of breach of procedure laid down in Rule 15(2)ibidand for not taking into account some of the objections raised by the applicant as discussed in Paras 7 and 8 above or in the representation of the applicant dt. 15.1.99 or his representation dt.
26.5.99, the order of Disciplinary Authority is unsustainable and is liable to be set aside. The (Jan.-244) allegation of the applicant that the appellate order dated 16.8.2000 was cryptic cannot be brushed aside.
11. For the reasons stated above, we are of the view that ends of justice will be met if the matter is remanded to the Appellate Authority to reconsider the case of the applicant in the light of the observations made hereinabove within a period of 150 days from the date of receipt of this order and dispose of the case strictly in terms of the procedure-laid down in Rule 27 of the CCS (CCA) Rules, 1965.
12. The application is disposed of accordingly without any order as to costs.