N.P. Singh vs Chairman And Anr

L. Narasimha Reddy, J

The applicant was employed as General Manager/Legal in the Delhi Metro Rail Corporation (DMRC). On 16.09.2010, a complaint was made by a Senior Law Officer of the organisation, alleging that she had been subjected to sexual harassment by the applicant. The appointing authority of the applicant referred the matter to the Standing Complaints Committee (for short, SCC) to verify whether the complaint discloses any prima facie case. A report was submitted by the SCC on 04.10.2010, taking a view that there exists a prima facie case.

A charge-sheet was issued to the applicant under rule 34 of the DMRC Conduct, Discipline and Appeal Rules, 2005 (for short, the Rules). On receipt of the charge-sheet, the applicant submitted a detailed reply on 03.11.2010, denying the charges. The disciplinary authority appointed an inquiry officer.

At that stage, the complainant, Ms. Kumkum Mishra, filed WP (C) No.1051/2011 before the Delhi High Court. According to her, the disciplinary inquiry was required to be conducted by the Internal Complaints Committee (ICC), and instead an inquiry officer is sought to be appointed. At the admission stage itself, the respondents informed the High Court that they intended to entrust the inquiry only to the ICC. Taking note of the same, the writ petition was disposed of on 18.02.2011.

The applicant submitted representations on various dates stating that the ICC was constituted by including some of the members of the SCC, and that there would be scope for bias. Since the representations were not considered, the applicant filed OA No.1326/2013, which was disposed of with the observation that the objections can be raised during the inquiry proceedings.

The ICC submitted its report on 21.01.2013 holding that the charges levelled against the applicant are proved. A copy of the report was furnished to the applicant, and he filed his reply on 20.03.2013 pointing out various illegalities that are said to have crept into the inquiry. The respondents passed an order dated 15.04.2013 imposing the punishment of removal from service. The representation made by him was disposed of on 25.05.2013. The appeal filed by him was rejected on 23.08.2013 by the appellate authority.

In this OA, the applicant has challenged the charge-sheet dated 07.10.2010, the inquiry report dated 21.01.2013, the order of punishment dated 15.04.2013, and the one passed by the appellate authority.

The applicant contends that there was no truth in the allegations made against him in the complaint, and the contents thereof were also vague and abstract. He submits that the very reference of the matter to the SCC is not provided under law, and that though several witnesses were examined therein, he was not given an opportunity to cross examine them. He further contends that in the course of the inquiry, he made a representation with a request to furnish the documents, and they were not furnished at all. He raised the plea of bias on the ground that some of the members of the SCC were made part of the ICC.

The respondents filed a counter-affidavit opposing the OA. According to them, the complaint received against the applicant alleging acts of sexual harassment, was dealt with strictly in accordance with law laid down by the Hon'ble Supreme Court from time to time, and at every stage, adequate opportunity was given to the applicant. They submit that the plea of bias is without any basis, and that the ICC has conducted the proceedings, duly giving opportunities to both the sides. They contend that no document which is relied upon by the ICC was denied to the applicant. Other contentions advanced by the applicant are also denied.

We heard Shri Piyush Sharma, learned counsel for the applicant, and Shri Kunal Sharma, learned counsel for the respondents, in detail.

The allegation against the applicant is regarding the sexual harassment of a fellow employee. The complaint was received on 16.09.2010, and soon thereafter, the matter was examined. It appears that the respondents constituted a Standing Complaints Committee, and with a view to verify whether there exists any prima facie case against the applicant, the complaint was referred to the Committee. The statements of the complainant as well as some of the officials of the respondents were recorded to examine whether there exists any prima facie truth in the complaint. Since it was not a regular inquiry, the question of the persons whose statements were recorded being subjected to cross-examination does not arise. The SCC opined that a regular inquiry needs to be conducted against the applicant.

The matter was referred to ICC, which is referable to the one provided for under rule 14 (2) of the CCS (CCA) Rules, 1965. Initially, there were four members in the ICC, and on two such members recusing themselves, another member was added. The applicant contends that some members were common to the SCC as well as the ICC, and thereby the proceedings turned out to be biased.

Simply because some members, who were part of the SCC for preliminary verification of the complaint, are made part of the ICC, it cannot be assumed that the proceedings stand vitiated on the grounds of bias. In this context, one can take into account the fact that in any organisation, the disciplinary authority can - (1) undertake a preliminary verification of the complaints against his subordinates; (2) issue a charge-sheet on finding that prima facie cases exists; and (3) can himself act as the inquiry officer. In such cases, the same officer acts as the disciplinary authority, the preliminary verification authority, and the inquiry officer. Still, the charged officer cannot allege bias. That being the case, the applicant cannot plead the grounds of bias, simply because one member was common to both, SCC and ICC. We, therefore, reject that plea.

The other contention of the applicant is that though he made representation with a request to furnish him documents, the respondents did not accede to that. A charged officer is no doubt entitled to be furnished documents. However, it is only copies of such documents as are relied by the department or the inquiry officer, that are required to be furnished. The request made by a charged officer to furnish a document, which is not relied upon in the inquiry, need not be acceded to. In such cases, it is for the charged officer to procure the documents from his own source or efforts, and then to file them before the inquiry officer. The department cannot be expected to strengthen the case of the delinquent employee by furnishing documents which are useful to him, but are not relied upon by them.

It is also pleaded that the findings of the ICC are not based on evidence. An attempt is made to point out contradiction in the evidence of various witnesses. It is fairly well settled that the Court or Tribunal cannot act as an appellate authority in the matters of this nature. It is not the decision as such which is subject to judicial review, but the decision-making process. Occasions may arise to interfere with the orders of punishment, if they are based on no evidence, or found to be patently without jurisdiction. No such grounds are established in this case. On a perusal of the record, we found that the disciplinary inquiry was conducted strictly in accordance with the procedure, and that the applicant has been given adequate opportunity to cross examine all the witnesses that were examined in the course of inquiry. In fact, some of the statements, in the form of SMS, admitted by the applicant, are derogatory and offending.

Learned counsel for the applicant submits that even if the punishment of removal from service is imposed and upheld, the applicant is entitled to be paid the benefits, such as gratuity and leave encashment. We do not intend to deal with that aspect at all. If despite the punishment, the applicant is entitled for any benefits, it is for the respondents to take a decision in that behalf, and the applicant has to work out his remedies.

We do not find any basis to interfere with the proceedings that are challenged in the OA. The OA is accordingly dismissed. There shall be no order as to costs.