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2007 DIGILAW 1204 (DEL)

NAVNEET KAUR v. UNION OF INDIA

2007-05-31

SANJIV KHANNA

body2007
MUKUNDAKAM SHARMA, C. J. ( 1 ) IN this appeal the order passed by the learned single Judge on 3rd august, 2006 disposing of the application registered as CM No. 8743/2006 is under challenge. The aforesaid application was filed by the appellant herein praying for stay of further proceedings of the second enquiry which is undertaken by the respondent No. 3 in respect of the allegations made by the appellant. ( 2 ) THE appellant herein submitted a complaint against the respondent Nos. 4 and 5 alleging that those two persons through their overt acts, gestures and at times directly, demanded sexual favours from the appellant who being a new appointee/probationer did not dare to openly protest/compliant against such unsolicited demands of the said respondents. The aforesaid complaint was required to be considered in terms of the guidelines and norms laid down by the supreme Court in the case of Vishaka in respect of the compliant of sexual harassment at workplace. The aforesaid complaint which was initially filed before the Chairman, Electronics and Computer Software Export Promotion Council was not acted upon and heeded to and not attended. Having no other alternative, the appellant filed a similar complaint of sexual harassment against the respondent Nos. 4 and 5 before the Secretary, DIT, Government of India. The said complaint was processed by the Secretary and he subsequently issued a direction directing Ms. Madhu Mahajan, Director, DIT, Government of India to enquire into the matter. Consequent upon the aforesaid entrustment Ms. Madhu mahajan directed the respondent Nos. 4 and 5 not to take any action against the appellant till completion of the enquiry. On 21. 10. 2004, the appellant filed another complaint stated that to be a comprehensive complaint of the appellant alleging sexual harassment by the respondent Nos. 4 and 5 which was forwarded to the Enquiry Committee constituted to look into the said matter under the chairpersonship of Ms. Madhu Mahajan. The said committee constituted by the DIT enquired into the matter and submitted a report. The said enquiry report is referred to as the first enquiry report. ( 3 ) AFTER the said report was published, the appellant sought for action to be taken on the basis of the said first report. Madhu Mahajan. The said committee constituted by the DIT enquired into the matter and submitted a report. The said enquiry report is referred to as the first enquiry report. ( 3 ) AFTER the said report was published, the appellant sought for action to be taken on the basis of the said first report. On the other hand, the respondent No. 3 Corporation took up a stand that the aforesaid enquiry conducted under the orders of the DIT, Government of India is without jurisdiction and cannot be treated as an enquiry made by the competent authority/disciplinary authority as DIT has no jurisdiction nor it has any disciplinary authority of the appellant. It was also the stand taken that the guidelines/rules in terms of which the aforesaid enquiry was conducted do not apply to the Corporation as also the respondent Nos. 4 and 5 who are employees of the respondent No. 3. Accordingly, the stand taken was that there are separate service regulations framed by the respondent No. 3 governing the service conditions of the respondent nos. 4 and 5 who are the employees of respondent No. 3. Having taken the aforesaid stand, the respondent No. 3 ordered for an enquiry to be conducted in respect of the allegations made regarding sexual harassment by the Committee constituted by the respondent No. 3. The appellant has challenged constitution of the said committee on the ground that the same is not constituted according to the guidelines and the norms laid down by the Supreme Court for constitution of such committees. Consequently, the constitution of the committee and conduct of the enquiry by the said committee are the subject matters which are challenged by filing the writ petition. ( 4 ) THE learned single Judge held that so for as the first enquiry is concerned, the same was not conducted either under the said rules of the Respondent No. 3 or under the service regulations or under the guidelines propounded by the supreme Court. It was also held that the first enquiry report cannot be the basis for any disciplinary action. So far the second enquiry is concerned, it was held by the learned single Judge that the same has been undertaken after due application of mind and particularly because no disciplinary action can be taken on the basis of the first enquiry report in which the respondent Nos. So far the second enquiry is concerned, it was held by the learned single Judge that the same has been undertaken after due application of mind and particularly because no disciplinary action can be taken on the basis of the first enquiry report in which the respondent Nos. 4 and 5 have not been given an opportunity to defend themselves. It was, therefore, held by the learned single Judge that the second enquiry cannot be stopped. The aforesaid order came to be challenged in this appeal on which we have heard the learned counsel appearing for the parties. With the consent of the parties we called for the records of the Writ Petition No. 923/2006 and the parties were heard and the Writ Petition is also being disposed of by this judgment. The issues and contentions raised in the Writ Petition and the present appeal are identical. ( 5 ) THE learned counsel appearing for the appellant submitted before us that the first enquiry which was conducted under the orders of the DIT, government of India was just and fair and also in accordance with the extent rules. In support of the said submission, our attention was drawn to the service rules to show that the disciplinary authority as also the appellate authority of the Executive Directors of respondent No. 3 is the Central government. ( 6 ) HOWEVER, on going through the records, we find that the respondent No. 3 is a separate legal entity and is an independent society registered under the societies Registration Act. Respondent No. 3 cannot be said to be a department or a branch of the Central Government and, therefore, neither the provisions of the CCS (CCA) Rules nor the provisions of Article 311 of the Constitution of india are applicable to the officers and employees of the respondent No. 3. The service conditions of the officers and employees of the respondent No. 3 are governed by a separate set of rules and regulations framed by the respondent no. 3. There could be some control of the DIT over the management and functioning of the respondent No. 3, but at the same time, on the basis of the documents on record, it is established that the respondent No. 3 cannot be said to be a branch or unit or department of the respondent No. 3. 3. There could be some control of the DIT over the management and functioning of the respondent No. 3, but at the same time, on the basis of the documents on record, it is established that the respondent No. 3 cannot be said to be a branch or unit or department of the respondent No. 3. It has its own separate legal existance being a society and the employees are governed by the services regulations framed by the respondent no. 3 and that actions are being taken against any of the officers and employees of the respondent No. 3 in accordance with the services regulations applicable to the employees of the respondent no. 3 and not by the Central Government. ( 7 ) OUR attention is also drawn to the fact that the appointing authority of the Executive Directors as also the disciplinary authority and the appellate authority is no longer the Government as mentioned in the amended schedule. According to the said provision the appointing authority of the Executive directors of the respondent No. 3 is the Chairman whereas the disciplinary authority is the Working Committee and the appellate authority is the Secretary of the administrative Ministry. Learned counsel appearing for the Union of india also accepts the aforesaid position. ( 8 ) WE may at this stage refer to the communication dated 15th February, 2007 of the Ministry of Commerce and Industry, Department of Commerce. In the said letter we find that certain clarifications have been issued in respect of the Council,. e. , the respondent No. 3. In the said communication the Joint secretary of the Ministry has clearly mentioned that the aforesaid council has to be treated an an autonomous non-governmental organisation. It is also intimated in response to the said letter that the employees of the non- governmental organisations such as the Respondent No. 3 are not Government servants and the said council is not required to seek clearance from the government of India for appointment or for creation of posts or framing of the service rules. It is clarified therein that the council framed their own rules governing the service conditions of their officers and employees and that the rules framed by the DIT are not, ipso facto, applicable to them. It is clarified therein that the council framed their own rules governing the service conditions of their officers and employees and that the rules framed by the DIT are not, ipso facto, applicable to them. ( 9 ) THE contention of the counsel appearing for the appellant that the council is a part of the Central Government is without basis and held to be without any merit. Consequently, the necessary consequential effects are that the first enquiry which was conducted under the orders of the Secretary, DIT for clarifying into the allegation of sexual harassment made by the appellant was without jurisdiction as he had no power and jurisdiction to conduct such an enquiry and that also without giving any opportunity to the respondent Nos. 4 and 5. We hold accordingly. The said enquiry report, therefore, cannot be given effect to or implemented in any manner. Reference in this regard can be made to the order dated 26. 4. 2004 passed by the Supreme Court in Writ Petition (Crl.) no. 173-177/1999 in the case titled Medha Kotwal Lele and Ors. Vs. UOI and Ors. , inter alia, directing as follows:- "complaints Committee as envisaged by the Supreme Court in its judgment in vishaka's case, 1997 (6) SCC 241 at 253, will be deemed to be an inquiry authority for the purposes of Central Civil Services (Conduct) Rules, 1964 (hereinafter called CCS Rules) and the report of the complaints Committee shall be deemed to be an inquiry report under the CCS Rules. Thereafter the disciplinary authority will act on the report in accordance with the rules" ( 10 ) HAVING held thus, we are required to see whether the second enquiry initiated by the respondent No. 3 could be acted upon which was allowed to be continued under the orders of this Court with a specific direction that the report shall be submitted to this Court under the sealed cover without the same being published. In other words, can the second enquiry be allowed to be brought to a logical end and made basis for further action. ( 11 ) IN respect of the same also very lengthy arguments were made before us. We have seen the constitution of the Committee which was called upon to conduct the second enquiry. The second committee as constituted consisting of mr. S. S. Dawra, Secretary, Government of India, Department of Personnel and Ms. ( 11 ) IN respect of the same also very lengthy arguments were made before us. We have seen the constitution of the Committee which was called upon to conduct the second enquiry. The second committee as constituted consisting of mr. S. S. Dawra, Secretary, Government of India, Department of Personnel and Ms. Madhulika Tripath. We find that the said committee is also not constituted in accordance with the guidelines and norms laid down by the Supreme Court in vishaka Vs. State of Rajasthan 1997 (6) SC 241. According to the said guidelines and according to the prevailing norms and regulations the chairman of the said committee should be a lady. The committee also must have not less than half of its members as women and a third party, either a NGO or other body who is familiar with the issue of sexual harassment to be a member of the committee. The said committee which was entrusted with the duty of conducting the second enquiry, in our considered opinion, is not constituted strictly in accordance with the guidelines and the norms. Therefore, we are of the considered opinion that the said enquiry is not valid and legal. In our opinion the report of the said committee should be quashed which we hereby do. ( 12 ) HOWEVER, since a complaint of the appellant against the respondent nos. 4 and 5 is pending for consideration the same is required to be investigated and enquired into by a duly constituted committee and the same must be allowed to be brought to a logical end. Accordingly, we direct the respondent No. 3 to constitute a legally valid committee in terms of and in accordance with the guidelines prescribed by the Vishaka's case (supra) within a period of three weeks from the date of passing of this order. On constitution of the said committee, the committee shall conduct the proceedings and hear the complaint of the appellant against the respondent No. 4 and 5 as expeditiously as possible preferably within a period of three months thereafter. On submission of the aforesaid report, the respondent No. 3 shall proceed to take action as called for in terms of the recommendations made in the report of the committee. With the aforesaid observations and directions, the appeal and the writ petition stand disposed of.