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2008 DIGILAW 1037 (CAL)

UNION OF INDIA v. Prabir Kumar Banerjee

2008-12-02

KALYAN JYOTI SENGUPTA, PRASENJIT MANDAL

body2008
JUDGMENT: SENGUPTA, J. (1). The judgment and order of the learned Tribunal dated 4th July, 2006 based on the application of Prabir Kumar Banerjee, respondent in O.A. No. 723 of 2003 is assailed in this application. The fact leading to filing the application before the Tribunal is briefly narrated hereunder: Respondent Prabir was served with a charge-sheet for initiating disciplinary proceedings against him and indeed it was initiated on the following imputation of misconduct: (a) He, while working as ADDPO, Kolkata GPO, during the period from 1st September, 1999 to 22nd October, 2000, used to tease one Smt. Arunima Das, LSGPA, Kolkata GPO at her working place and used to take her to hotels at Dharmatala, Kidderpore and Esplanade in Kolkata, for enjoyment despite her unwillingness. The said Sri Banerjee off and on, forced Smt. Das to accompany him for such exploits and threatened Smt. Das by saying that he being the President of the Service Union possessed immense power and would transfer Smt. Das to anywhere he liked if Smt. Das disclosed to anyone in regard to his exploits with her. By the above act, the said Sri Banerjee harassed Smt. Das, the lady staff at her working place and exploited her, both physically and mentally and the same amounts to unwelcome socially determined behaviour as per G.D. (25) below Rule 3-C of CCS (Conduct) Rules 1964 (33rd Edition 2001) and hence, the said Sri Banerjee violated the provision of Rule 3-C(l) of CCS (Conduct) Rules, 1964. By the above Act, the said Sri Banerjee displayed behaviour which is unbecoming of a government servant and thereby, violated the provision under Rule 3(1) (iii) of CCS (Conduct) Rule, 1964. (b) He while working during the same period had borrowed money from the said Smt. Arunima Das on different occasions to meet expenses relating to his private affairs on the dates and the amount was of Rs. 98,990/-. By borrowing the above amount from the said Smt. Das the said Banerjee placed himself under a great pecuniary obligation to Smt. Das and by doing such act the said Sri Banerjee violated the provisions under Rule 16(4) (i)(a) of CCS (Conduct) Rules, 1964. By this act, the said Sri Banerjee displayed lack of integrity and acted in a manner which is unbecoming of a Government servant and thereby violated Rule 3(l)(i) and (iii) of CCS(Conduct) Rules, 1964. (2). By this act, the said Sri Banerjee displayed lack of integrity and acted in a manner which is unbecoming of a Government servant and thereby violated Rule 3(l)(i) and (iii) of CCS(Conduct) Rules, 1964. (2). The said charge-sheet was replied to by Prabir, and not being satisfied with his explanation in his reply an Enquiry Officer was appointed and on examining witnesses and considering documentary evidence the Enquiry Officer had found him guilty of the first charge viz. sexual mis-behaviour and the other charge was not found to have been established. The disciplinary authority received the report of the Enquiry Officer and having concurred with such findings accepted the report and imposed on him punishment of compulsory retirement from services. The departmental appellate authority, on appeal being preferred by Prabir, did not interfere with the same. However, the learned Tribunal, after examining everything, has found that the report of the Enquiry Officer was perverse and no evidence worth was available in the record to prove the applicant guilty of alleged misconduct. The Tribunal also found that the initiation of disciplinary proceedings was uncalled for as there was no complaint made by the said victim and on the basis of some statement made outside and circulated amongst fellow employees and going by the newspaper report action was taken* Therefore, this order of compulsory retirement was set aside. However, liberty was given to proceed afresh outlining some guidelines and the applicant was ordered to be reinstated. (3). Mr. Pradip Roy appearing for the petitioner, submits that the Tribunal while directing fresh enquiry was swayed by insignificant discrepancies and avoidable technicalities. He contends that the learned Tribunal has to examine the entire material to ascertain the genuineness of the complaint viz. the statement of the victim. Learned Tribunal has failed to follow the ratio laid down in the judgment of the Supreme Court reported in (1999)1 SCC 759 . In the record evidence has been adduced to prove that the victim being a subordinate staff was controlled by his superior viz. Prabir who was then a union leader. Taking advantage of his position and also simplicity of the victim he put her in compelling circumstances and did sexual abuse. The learned Tribunal failed to consider that strict rule of evidence criminal or civil trial is not necessary in departmental proceedings. Prabir who was then a union leader. Taking advantage of his position and also simplicity of the victim he put her in compelling circumstances and did sexual abuse. The learned Tribunal failed to consider that strict rule of evidence criminal or civil trial is not necessary in departmental proceedings. It was not necessary that the complaint has to be made by the victim formally. As she came to depose before the Enquiry Officer and to place her grievances, absence of her formal complaint does not vitiate the departmental proceedings. With the evidence it is clearly established that the victim was sexually harassed not only at the place of work but also elsewhere. The learned Tribunal should have followed the established principle of law that the Enquiry, Officer and disciplinary authority are the sole and exclusive Judges of the fact. Adequacy and reliability of the evidence is not a matter that can be brought for scrutiny in public law-field under Article 226 of the Constitution of India. In support of his submission he has relied on a decision of the Supreme Court reported in (2006)2 SCC 584 : (2006)2 WBLR (SC) 707. If informal complaint in a departmental proceeding is accepted and confirmed by the maker herself the same should have been accepted to be a document in the proceeding departmentally and this position has been laid down in the B.C. Chaturvedis Case. Hence, all the ingredients of sexual harassment as laid down in case of Vishaka and Ors. v. State of Rajasthan and Ors. reported in (1997)6 SCC 241 have been established. (4). The learned Counsel for the respondent, on the other hand, says that the judgment and order of the learned Tribunal does not call for any interference as it was found on detailed appreciation of fact that there was no evidence to record misconduct of the respondent. Finding of Enquiry Officer and order of punishment was based on surmise and conjecture and that is why order of removal as well as report of the Enquiry Officer was not sustainable and the same was set aside but liberty was given to take fresh decision. (5). We have gone through the impugned judgment and order of the learned Tribunal carefully and the papers filed before the learned Tribunal and before us also. (5). We have gone through the impugned judgment and order of the learned Tribunal carefully and the papers filed before the learned Tribunal and before us also. It is appropriate to mention that the respondent before us did not file any cross-objection against the order and direction of the learned Tribunal for remanding the matter for fresh consideration. Therefore, the question is whether the judgment and order of the learned Tribunal was justified in the facts and circumstances of the case or not. Upon perusal of the same it appears to us that the pivotal point which was urged before us by the respondent was that the findings of the Enquiry Officer followed by disciplinary and appellate authorities are based on no evidence. It is also alleged that there has been no procedural observance following the judgment rendered in Vishakas case by the Honble Supreme Court of India reported in (1997) 6 SCC 241 . The learned Tribunal has gone on great details observing that there has been no prima facie case of sexual harassment at the place of employment. No formal complaint was lodged by the victim employee. In spite of these findings the learned Tribunal remanded the case for fresh hearing of course after giving direction for reinstatement of the applicant. Now only task left with us is whether quashing of the punishment and findings of the Enquiry Officer was justified or not. One of the primary points was that there had been no evidence, so to say, to record misconduct of sexual harassment. We have gone through the report of the Enquiry Officer who has recorded what can be termed to be reiteration and repetition of the statement of imputation of charges. He has not analysed evidence objectively. He has simply recorded that sexual harassment at the place of employment has been proved. How he came to findings that the misconduct has been proved, is not recorded. However, since it is a case of domestic proceedings we cannot expect the skill and expertise of a Judge of a law Court or Tribunal. The question is whether there has been any material to record that misconduct of sexual harassment has been proved or not. In pursuit to this object we have taken pain of going through the evidences adduced by the witnesses of the department. The question is whether there has been any material to record that misconduct of sexual harassment has been proved or not. In pursuit to this object we have taken pain of going through the evidences adduced by the witnesses of the department. It is admitted position that no formal complaint was made by the said lady to the appropriate officials of the department. A statement has been made by her and copies whereof was circulated amongst the various office staffs in the department and on being circulated the same published in the print media. Thus, on receiving information in totality the department started suo motu action on the basis of xerox copy of the statement made by the lady alleging what has been termed to be sexual harassment allegedly meted out by the respondent to her. Nothing can be found in the deposition of any witness about sexual harassment. The lady herself has merely stated that she has accepted the said complaint to be her own and she wants to place it. But she has not proved that she was sexually harassed as alleged in the articles of charges. We do not find any corroboration of her testimony by any witnesses nor any independent proof of misconduct of the respondent as alleged in the articles of charges. (6). We have gone through carefully the text of the statement which was treated to be the complaint by the department. We are unable to find any allegation of sexual harassment at working place. Therefore, we are of the view that the learned Tribunal is justified in quashing the findings of the Enquiry Officer and order of punishment as because there is no proof at all. The contention and submission of Mr. Roy is that the technicality should be avoided and the judgment of the Supreme Court as noted above is also helpful in this matter. We are unable to accept this submission or to apply the judgment of the Supreme Court relied on by him as quoted above as those are immaterial in this case simply because there has been no proof at all. Enquiry Officer has proceeded on the basis of conjecture and surmise. We are unable to accept this submission or to apply the judgment of the Supreme Court relied on by him as quoted above as those are immaterial in this case simply because there has been no proof at all. Enquiry Officer has proceeded on the basis of conjecture and surmise. According to us all the authorities concerned were with misplaced conception that as the report in the newspaper implicating the respondent was not controverted or rebutted by taking appropriate action, the statement published in the newspaper made by the lady is presumed to be correct. This views has presumably been taken following the principle of non-traversal. According to us, implication of non- denial or non-traversal of pleading filed in the Court of law or tribunal no doubt gives rise presumption of admission, but the statement reported in the newspaper, in our view, does not require any denial or traversal applying the aforesaid principle simply because the same can not be equated with the pleading in Court. One may choose to bring action against statement appearing to be defamatory or derogatory against author of the same. It is at the highest actionable wrong. If he does not do so, it cannot axiomatically be presumed that such a statement has been accepted by him. But sequel to inaction would be personal sufferings. Hence, the learned Tribunal has correctly recorded that the findings of the Enquiry Officer, Disciplinary Authority, Appellate Authority are based on surmise and conjecture. We, therefore, uphold this portion of the findings of the learned Tribunal. (7). However, we notice that the learned Tribunal while asking the departmental authority to proceed afresh, has recorded its observation and findings on the merit of the case which, in our view, is not permissible under law and those observations and statements should not be a guiding factor and departmental authority should not be swayed. As such direction upon the applicant to transfer the victim lady to some other department, according to us, was unnecessary. So enquiry can be proceeded with in accordance with law. However, the departmental authority shall also consider whether the said statement, that is treated to be a complaint constitute any sexual harassment warranting any action in the context of the guidelines given in the Vishakas case or not. There are lot of things which are emerging from the complaint and both parties can put forward their respective points. However, the departmental authority shall also consider whether the said statement, that is treated to be a complaint constitute any sexual harassment warranting any action in the context of the guidelines given in the Vishakas case or not. There are lot of things which are emerging from the complaint and both parties can put forward their respective points. We do not wish to record observing anything as to propriety, maintainability and legality of the said complaint. With the aforesaid slight modification we dispose of the application directing the departmental authority to conclude the enquiry within a period of three months from the date of communication of this order appointing a new Enquiry Officer. If the respondent has not attained the retirement age obviously judgment and order of the learned Tribunal of reinstatement will have to be implemented. We are told that a complaint proceedings is pending. The said complaint proceedings if any will be disposed of in accordance with law. There will be no order as to costs.