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2015 DIGILAW 1024 (GUJ)

Sunil Manuprasad Jani v. High Court of Gujarat

2015-10-12

SONIA GOKANI

body2015
JUDGMENT : Sonia Gokani, J. 1. Petitioner herein challenges institution and continuance of the Departmental Inquiry No. 6 of 2011 initiated against him on the ground that it is violative of the Gujarat Civil Services [Discipline & Appeal] Rules; as amended vide Notification dated 1st December 2014. 2. Brief facts are as follow : 2.1 The petitioner is serving for the past thirty six years and is presently working on the post of Registrar on the establishment of the Metropolitan Magistrates' Court at Ahmedabad. One of the employees made allegations of sexual harassment at work-place, and therefore, an inquiry No. 2 of 2011 was initiated and conducted by the Complaints Committee, which according to the petitioner exonerated him vide its Report dated 27th May 2011. It is the say of the petitioner that second inquiry on the very ground since has been initiated, being Inquiry No. 6 of 2011, it is void ab initio and akin to the principle of double jeopardy. It is further his say that the approach of the respondent No. 3, who is an Inquiry Officer, is also indicative of his determination to hold the petitioner guilty of charges of sexual harassment, and hence, this writ petition is preferred praying for the following reliefs : "[a] to allow this petition with costs and issue a writ of mandamus or any other writ, direction or order in the nature of writ, as may be deemed to be appropriate, quashing and setting aside the Departmental Inquiry No. 6 of 2011; [b] to stay the proceedings of the Departmental Inquiry No. 6 of 2011, pending admission, hearing and final disposal of this petition; [c] to decide the present petition as expeditiously as possible; and [d] to grant such further and other reliefs, as may be deemed to be just and proper." 3. On issuance of notice, affidavit-in-reply is filed by the Registrar of Chief Metropolitan Magistrate Court, Ahmedabad contending inter alia that pursuant to the guidelines issued by the Supreme Court in case of Visaka v. State of Rajasthan, reported in (1997) 6 SCC 241 , each and every Institution/Organization was required to form a Complaints Committee to redress the complaints given by women employees pertaining to sexual harassment at the workplace. In compliance to the said requirement, the Court of learned Chief Metropolitan Magistrate formed a Complaints Committee so as to redress the complaints preferred in reference to sexual harassment at the workplace. 4. On 12th October 2010, complaint in relation to sexual harassment came to be lodged by one of the female employees against the present petitioner. A preliminary inquiry was, therefore, conducted whereby statements were recorded without cross examination of the deponents. The Complaints Committee comprising 5 members submitted its reported wherein three members held that there was no merit or substance in the said complaint, where two committee members found substance in the said complaint. 4.1 Respondent No. 2 forwarded to the respondent No. 1, the report of the Complaints Committee on 10th June 2011 for consideration and necessary action. On 17th June 2011 the respondent No. 1 returned the original record of the inquiry and the inquiry report back to the respondent No. 2 and requested him to intimate the final outcome of the inquiry and steps taken by him on the report submitted by the Inquiry Committee. On 30th July 2011, the respondent No. 2 addressed a letter to the respondent No. 1 informing the Registrar General that three members of the complaint committee did not support the complaint, and whereas, two of the members have supported the same. It was further conveyed that since the High Court is the appointing authority for the post of Registrar, no step was taken by the respondent No. 2 against the petitioner. It had only forwarded the original record of Inquiry No. 2 of 2010 for information and necessary action. The Chief Metropolitan Magistrate also expressed his intention to propose reasonable punishment of reversion of the petitioner from the post of Registrar to the post of Assistant Superintendent, and sought approval of the same from the High Court. Respondent has added to this its surprise by expressing that the said letter being confidential in nature, how the petitioner could have got a copy thereof. 4.2 On 19th October 2011, the respondent No. 1 intimated the respondent No. 2 that after serving the chargesheet and receiving reply from the petitioner, appropriate decision be taken. 4.3 On 20th December 2011, the Chief Metropolitan Magistrate ordered to hold departmental inquiry against the petitioner in reference to the complaint of sexual harassment. This Inquiry is numbered as Departmental Inquiry No. 6 of 2011. 4.3 On 20th December 2011, the Chief Metropolitan Magistrate ordered to hold departmental inquiry against the petitioner in reference to the complaint of sexual harassment. This Inquiry is numbered as Departmental Inquiry No. 6 of 2011. Chargesheet and other papers have been served upon the petitioner and Departmental Inquiry No. 6 of 2011 came to be initiated. 4.4 After Inquiry Officer and Presenting Officer were appointed, copies of order and chargesheet alongwith statement of imputation and list of documents had also been furnished to the petitioner. He replied to the same on 12th March 2012 and requested the disciplinary authority to exonerate him of the charges levelled. 4.5 Evidence of witnesses was recorded in Departmental Inquiry No. 6 of 2011, who were also cross examined extensively. After all the witnesses were examined, further statement of the petitioner was recorded by the Inquiry Officer on 13th October 2014 and 17th January 2015. The Presenting Officer and the petitioner also had putforth their arguments and the inquiry was pending for rejoinder submissions by the Presenting Officer. 4.6 In the meantime, the Presenting Officer made an application Exh. 248 to the Inquiry Officer and sought permission to examine two members of the Complaint Committee, who had earlier conducted the preliminary inquiry. After hearing both the sides, the Inquiry Officer passed an order dated 5th June 2015 granting permission to examine the two lady members of the complaint committee [for the sake of confidentiality, are referred hereinafter referred to as "X" & "Y"]. 4.7 Witness summons also was issued to one of the witnesses on 9th June 2015, who made an application Exh. 268 to the Inquiry Officer not to examine her as a witness on the ground that she was a member of the Complaints Committee. Later on, she did not press this application and the same was treated as withdrawn on 29th June 2015. 4.8 However, examination-in-chief of this witness "X" was recorded vide Exh. 276 on 14th June 2015 and 21st July 2015. While the matter was pending for further deposition of witness "X", the petitioner made an application Exh. 286 to recall and/or review the order passed below Application Exh. 248 by which the Inquiry Officer had permitted the Presenting Officer to call witness "X" and "Y" - the lady members of the Complaints Committee. After bipartite hearing, such Application Exh. 286 came to be rejected on 11th August 2015. 286 to recall and/or review the order passed below Application Exh. 248 by which the Inquiry Officer had permitted the Presenting Officer to call witness "X" and "Y" - the lady members of the Complaints Committee. After bipartite hearing, such Application Exh. 286 came to be rejected on 11th August 2015. 4.9 Thereafter, an Application Exh. 298 was preferred by the petitioner stating therein that the Inquiry No. 6 of 2011 is void ab initio and non est in view of the amendment made in sub-rule (2) of Rule 9 of the Gujarat Civil Services [Discipline & Appeal] Rules, 1971. Therefore, he insisted that this application be decided before proceeding further with the inquiry. The Inquiry Officer however passed an order to hear the said application Exh. 298 at the time of final arguments in the inquiry, and therefore, the present writ petition with the aforementioned prayers. 5. It is the say of the respondent that complaint is of the year 2010 and the Regulations have been made in the year 2013, after the decision of the Apex Court rendered in case of Ms. Binu Tamta & Anr. v. High Court of Delhi & Ors. It is further his say that the learned Chief Metropolitan Magistrate formulated the "Gender Sensitization & Sexual Harassment of Women under the jurisdiction of the Metropolitan Magistrate Courts, Ahmedabad [Prevention, Prohibition & Redressal] Regulations, 2013." The same have been forwarded to the Government for publication, but yet they are not published in the Official Gazette. The Inquiry therefore conducted by the internal complaint committee would be deemed to be an independent inquiry until upon implementation of the said Regulation of 2013. It is further the stand of the respondent that the departmental inquiry proceedings are almost at the penultimate stage, and therefore, at this stage no petition should be entertained. After seeking guidance of the respondent No. 1, proceedings of present inquiry have been initiated. And, the inquiry referred to by the petitioner was in fact preliminary inquiry which had been conducted by the Complaints Committee. 6. Learned advocate Mr. Trivedi appearing for the petitioner has fervently urged that this being a question of law, at any stage, it could have been agitated. And, the inquiry referred to by the petitioner was in fact preliminary inquiry which had been conducted by the Complaints Committee. 6. Learned advocate Mr. Trivedi appearing for the petitioner has fervently urged that this being a question of law, at any stage, it could have been agitated. He agreed that for nearly four years, the petitioner participated in the inquiry and at no stage has raised a murmur with regard to this being the second departmental inquiry, and therefore, request to treat the same as void ab initio was made quite belatedly, after he submitted his further statement. He does not dispute that when the Presenting Officer desired to examine two members of the internal complaints committee [ICC] that at that stage, he has chosen to object to not only the examination of the members but also, for conducting of the second inquiry for the very charges. He has urged that majority of the members of ICC have exonerated him and if the disciplinary authority had contrary view, it could have recorded its own reasons and awarded punishment. However, to choose to inquire once again in complete disregard to the decisions of the Supreme Court and the amendment made in the Rules itself requires indulgence. He further has urged that the Inquiry Officer cannot be a witness. The requisite fairness expected from the authorities which are the State is missing. According to him, the first inquiry also was numbered and so was the second inquiry and it is going on full-fledged. It is also his say that the procedural law is the hand-made of substantive law and what procedure needs to be followed by ICC was to be decided by itself. When the strict rules of evidence does not apply to the departmental proceedings, this initiation of second inquiry is in no manner in consonance with the law and in particular the amended rule on the subject. 7. Learned senior advocate Mr. Shalin Mehta appearing for the respondents with learned advocate Mr. Hemang Shah urged that ordinarily what the learned advocate for the petitioner states could be accepted as the amendment made in the GCSR has made a material change. The amendment would apply to the case of the petitioner provided other conditions are satisfied. 7. Learned senior advocate Mr. Shalin Mehta appearing for the respondents with learned advocate Mr. Hemang Shah urged that ordinarily what the learned advocate for the petitioner states could be accepted as the amendment made in the GCSR has made a material change. The amendment would apply to the case of the petitioner provided other conditions are satisfied. The first and foremost question, according to the learned counsel, would be as to whether Internal Complaints Committee while conducting Inquiry No. 2 of 2010 was in fact acting as an inquiring authority under the Rules. He has pointed out that neither the chargesheet was given nor the statement of imputation of charges made. No witness has been examined nor any opportunity given to the petitioner, as is otherwise required in the full-fledged inquiry. It was by all means a preliminary inquiry. According to him, Rules 3, 4, 5 & 6 of GCS {Disciplinary & Appeal} Rules lay down the procedure and the same cannot be jettisoned to proviso where the report for the ICC is deemed to be the report of an inquiring authority. The conditions applied need to be satisfied. He also has urged that in further statement recorded of petitioner, wild allegations have been made by the petitioner against those members who acted as part of ICC, and therefore, according to him, there are valid reasons existing for summoning these two witnesses as it was an extraordinary step taken to meet with extraordinary situation. To scuttle such inquiry after four years when it is at the penultimate stage, is not desirable. 8. Rejoinder affidavit is filed by the petitioner maintaining the averments made in the memo of writ petition and thereby denied those made out by the otherside. 9. The Constitution Bench of the Apex Court in case of AR Antulay v. R.S Nayak, reported in AIR 1988 SC 1531 referred to the decision rendered in case of Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 holding that when a corruption case is triable by the Special Judge, the Supreme Court was not competent to issue directions for transferring it to the High Court, and therefore, directions issued in the case reported in AIR 1984 SC 684 were recalled on the ground that the High Court was not authorized by law, especially when the order was clearly per incuriam. If the High Court did not have jurisdiction, the directions of the Supreme Court cannot confer special jurisdiction. No person should suffer from the mistake of any Court. The Supreme Court is also not powerless to correct its own error, if it notices that a citizen is deprived of its fundamental rights. 9.1 It is emphasized that actus curiae neminem gravabit ie., an act of the Court shall prejudice no man. In this case, after once the Inquiry No. 2 of 2010 was concluded, with the report of ICC, the same was sent to the respondent-High Court. The High Court directed the respondent No. 2 to take appropriate measures to serve the petitioner chargesheet and after receiving his version to take appropriate step in this regard. It is not disputed that thereafter, Inquiry Case No. 6 of 2011 was initiated. If the law does not permit initiation of any proceedings, guidance or direction of the Respondent No. 1 on administrative front cannot confer jurisdiction upon the second inquiry authority. 9.2 It is urged in this case that the case of Visaka v. State of Rajasthan [Supra] does not contemplate any preliminary inquiry and in the ICC report also, the word "preliminary" is conspicuously absent and if no opportunity is given to the petitioner of cross examination and he was exonerated of all charges, if at all any body was aggrieved, it was he who was aggrieved, and therefore also, the second inquiry is not permissible. 10. Taking firstly the ground that for the very charges, a second inquiry whether could be sustained, the neat question of law shall have to be answered in negation. And yet, in the instant case, inquiry case No. 6 of 2010 deserves to be sustained. It is necessary to refer to the decision in case of Visaka v. State of Rajasthan [Supra] which arose from a case where a woman employee was working in a project of the State Government of Rajasthan was gang raped on account of her severe protest to the arch practice of child marriage [of 9 months old girl] by the father of this girl and his nephew in presence of three others. The Supreme Court referred to International Covenants and commitment made at the Convention on Elimination of All Forms of Discrimination [CEDAW], to which India is also a signatory, required State participation to take appropriate measures to eliminate discrimination against women in the field of employment, and thereby laid down the guidelines and norms for due observance at all the work places or other institutions, until a legislation is enacted for the protection of women against sexual harassment at work places. The Apex Court gave a proposed draft of the Act for preventing sexual harassment at the workplaces till the legislation actually comes out with such law. 10.1 Thereafter, once again, these guidelines and directives were referred to and reiterated in case of Apparel Export Promotion Council v. A.K Chopra, reported in (1999) 1 SCC 759 , wherein the Apex Court held and observed thus, "24. Against the growing social menace of sexual harassment of women at the work place, a three Judge Bench of this Court by a rather innovative judicial law making process issued certain guidelines in Vishaka v. State of Rajasthan, (1997) 6 SCC 241 , after taking note of the fact that the present civil and penal laws in the country do not adequately provide for specific protection of woman from sexual harassment at places of work and that enactment of such a legislation would take a considerable time. In Vishaka's case (supra), a definition of sexual harassment was suggested. Verma, J., (as the former Chief Justice then was), speaking for the three-Judge Bench opined : "2. Definition : For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as: (a) physical contact and advances; (b) a demand or request for sexual favours; (c) sexually-coloured remarks; (d) showing pornography; (e) any other unwelcome physical, verbal or non- verbal conduct of sexual nature. Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victims employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victims employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto." 25. An analysis of the above definition, shows that sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for effecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her. 26. There is no gainsaying that each incident of sexual harassment, at the place of work, results in violation of the Fundamental Right to Gender Equality and the Right to Life and Liberty - the two most precious Fundamental Rights guaranteed by the Constitution of India. As early as in 1993 at the ILO Seminar held at Manila, it was recognized that sexual harassment of woman at the work place was a form of gender discrimination against woman. In our opinion, the contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated and that there can be no compromise with such violations, admits of no debate. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated and that there can be no compromise with such violations, admits of no debate. The message of international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW) and the Beijing Declaration which directs all State parties to take appropriate measures to prevent discrimination of all forms against women besides taking steps to protect the honour and dignity of women is loud and clear. The International Covenant on Economic, Social and Cultural Rights contains several provisions particularly important for women. Article 7 recognises her right to fair conditions of work and reflects that women shall not be subjected to sexual harassment at the place of work which may vitiate working environment. These international instruments cast an obligation on the Indian State to gender sensitise its laws and the Courts are under an obligation to see that the message of the international instruments is not allowed to be drowned. This Court has in numerous cases emphasised that while discussing constitutional requirements, court and counsel must never forget the core principle embodied in the International Conventions and Instruments and as far as possible give effect to the principles contained in those international instruments. The Courts are under an obligation to give due regard to International Conventions and Norms for construing domestic laws more so when there is no inconsistency between them and there is a void in domestic law. [See with advantage Prem Sankar v. Delhi Administration, AIR 1980 SC 1535 ; Mackinnon Mackenzie and Co. v. Audrey D'Costa, (1987) 2 SCC 469 JT 1987 (2) SC 34; Sheela Barse v. Secretary, Children's Aid Society, (1987) 3 SCC 50 at p.54; Vishaka & others v. State of Rajasthan & Ors., JT 1997 (7) SC 392; Peoples Union for Civil Liberties v. Union of India & Anr., JT 1997 (2) SC 311 and D.K. Basu & Anr. v. State of West Bengal & Anr., (1997) 1 SCC 416 at p.438]. 27. In cases involving violation of human rights, the Courts must for ever remain alive to the international instruments and conventions and apply the same to a given case when there is no inconsistency between the international norms and the domestic law occupying the field. v. State of West Bengal & Anr., (1997) 1 SCC 416 at p.438]. 27. In cases involving violation of human rights, the Courts must for ever remain alive to the international instruments and conventions and apply the same to a given case when there is no inconsistency between the international norms and the domestic law occupying the field. In the instant case, the High Court appears to have totally ignored the intent and content of the International Conventions and Norms while dealing with the case." 10.2 When no law was made for nearly fifteen years and no progress was made for appointing ICC in all public and private places of employment, in case of Medha Kotwal Lele & Ors. v. Union of India & Ors., reported in (2013) 1 SCC 311 , Supreme Court gave directions to the Central Government and all the State Governments to formulate Internal Complaints Committee and also gave directions to make a provision in the disciplinary rules for the report of ICC to be deemed as a report of Inquiry Authority in connection with complaints of sexual harassment at workplaces. Apt would be, to reproduce the same at this sage, which reads thus- "44. In what we have discussed above, we are of the considered view that guidelines in Vishaka should not remain symbolic and the following further directions are necessary until legislative enactment on the subject is in place. 44.1 The States and Union Territories which have not yet carried out adequate and appropriate amendments in their respective Civil Services Conduct Rules (By whatever name these Rules are called) shall do so within two months from today by providing that the report of the Complaints Committee shall be deemed to be an inquiry report in a disciplinary action under such Civil Services Conduct Rules. In other words, the disciplinary authority shall treat the report/findings etc. of the Complaints Committee as the findings in a disciplinary inquiry against the delinquent employee and shall act on such report accordingly. The findings and the report of the Complaints Committee shall not be treated as a mere preliminary investigation or inquiry leading to a disciplinary action but shall be treated as a finding/report in an inquiry into the misconduct of the delinquent. The findings and the report of the Complaints Committee shall not be treated as a mere preliminary investigation or inquiry leading to a disciplinary action but shall be treated as a finding/report in an inquiry into the misconduct of the delinquent. 44.2 The States and Union Territories which have not carried out amendments in the Industrial Employment (Standing Orders) Rules shall now carry out amendments on the same lines, as noted above in clause (i) within two months. 44.3 The States and Union Territories shall form adequate number of complaints Committees so as to ensure that they function at taluka level, district level and state level. Those States and/or Union Territories which have formed only one Committee for the entire State shall now form adequate number of Complaints Committees within two months from today. Each of such Complaints Committees shall be headed by a woman and as far as possible in such Committees an independent member shall be associated. 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. 44.5 The Bar Council of India shall ensure that all bar associations in the country and persons registered with the State Bar Councils follow the Vishaka guidelines. Similarly, Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute of Company Secretaries and other statutory Institutes shall ensure that the organisations, bodies, associations, institutions and persons registered/affiliated with them follow the guidelines laid down by Vishaka. To achieve this, necessary instructions/circulars shall be issued by all the statutory bodies such as Bar Council of India, Medical Council of India, Council of Architecture, Institute of Company Secretaries within two months from today. On receipt of any complaint of sexual harassment at any of the places referred to above the same shall be dealt with by the statutory bodies in accordance with the Vishaka guidelines and the guidelines in the present order. 45. On receipt of any complaint of sexual harassment at any of the places referred to above the same shall be dealt with by the statutory bodies in accordance with the Vishaka guidelines and the guidelines in the present order. 45. We are of the view that if there is any non-compliance or non-adherence to the Vishaka guidelines, orders of this Court following Vishaka and the above directions, it will be open to the aggrieved persons to approach the respective High Courts. The High Court of such State would be in a better position to effectively consider the grievances raised in that regard." 10.3 Later on Sexual Harassment of Women at Workplace [Prevention, Prohibition & Redressal] Act, 2013 with Rules of 2013 came to be enacted. 11. As could be noticed, Rule 14 of the Central Civil Services [Classification, Control & Appeal] Rules, 1965 provides that the report of the Internal Complaints Committee is to be considered as an inquiry report. Likewise, Rule 9(2) of the Gujarat Civil Services [Discipline & Appeal] Rules, 1971 provides for identical provision. It would be apt to quote Rule 9[2] of the Gujarat Civil Services [Discipline & Appeal] Rules, 1971, which read thus - "9. Procedure for imposing major penalties : [1] xx xx xx [2] Where the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour or of any culpable act or omission, against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Service (Inquiry) Act, 1650 as the case may be, an authority to inquire into the truth." 11.1 Provisio provides that the complaints committee established in each department/office for inquiring into the complaints of sexual harassment within the meaning of Rule 3[b] of the said Rules shall be deemed to be an Inquiry Authority appointed by the Disciplinary Authority for the purpose of these rules and the complaints committee shall hold, as far as practicable, the inquiry in accordance with the procedure laid down in these rules. It is not in dispute that the said rules also lay down the procedure. It is not in dispute that the said rules also lay down the procedure. "Provided that where there is a complaint of sexual harassment within the meaning of Rule 3(B) of the Gujarat Civil Services [Discipline & Appeal] Rules, 1971, the Complaints Committee established in each Department or Office for inquiring into such complaints, shall be deemed to be the Inquiry Authority appointed by the Disciplinary Authority for the purpose of these rules, and the Complaints Committee shall hold, if separate procedure making inquiry of sexual harassment and in case the procedure has not been prescribed for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules". 11.2 This leeway is permitted to the internal complaints committee considering seriousness of the very nature of complaint under the Sexual Harassment Act, however, broadly these rules are required to be followed by the internal complaints committee and the deeming aspect would apply, provided the conditions of following rules broadly get satisfied. 12. The internal complaints committee, as per Sexual Harassment of Women at Workplace [Prevention, Prohibition & Redressal] Act, 2013 is contemplated for every institution, where atleast one-half of the total members so nominated shall be women. The Chairperson of the said Committee is also required to be a woman. Section 4 of the Act provides for constitution of internal complaints committee for inquiring into complaints of sexual harassment made by the female employees at the workplace. As the internal complaints committee is not required to go into the complaint, by way of Supreme Court decision, a proviso has been added, deeming the said authority to be an Inquiring authority appointed by the disciplinary authority. However, the requisite conditions for it to be deemed it as an Inquiring authority is that as far as practicable wherever the rules are providing, the inquiry shall be made in accordance with such rules. 13. Admittedly, in the instant case, Inquiry No. 2 of 2010 had been carried out by the complaints committee comprising five members - three of whom were women members; including the chairperson. It was constituted on 19th April 2010 on the complaint made by one of the female employees against the present petitioner in relation to sexual harassment at workplace. The Committee also recorded statement of some of the witnesses and collected documentary evidence. It was constituted on 19th April 2010 on the complaint made by one of the female employees against the present petitioner in relation to sexual harassment at workplace. The Committee also recorded statement of some of the witnesses and collected documentary evidence. On the strength of the statements recorded of these witnesses so also on the basis of documentary evidences, three members opined in favour of the present petitioner, whereas, two members - both women members [witnesses "X" & "Y"] held in favour of the employee concerned. Admittedly, no opportunity of hearing at any point of time was given to the petitioner nor was any imputation of charges made nor chargesheet alongwith statement of imputation and list of documents were furnished, nor witnesses were permitted to be cross examined. Three members, however, on the strength of material available held in favour of the petitioner and two of them opined against him. 13.1 Upon receipt of such report on 27th May 2011, as noted above, the respondent No. 2 forwarded it to the respondent No. 1 High Court on 10th June 2011 for consideration and it was returned by the High Court on 17th June 2011 to intimate the final outcome of the inquiry. On 30th July 2011, the respondent No. 2 informed the respondent No. 1-authority that three members did not support the application of the complainant and had urged that since the High Court was the appointing authority for the post of Registrar, learned Chief Metropolitan Magistrate did not take any action. However, he proposed to pass a reasonable punishment for reversion of the petitioner and in wake of such communication dated 19ht October 2011, the High Court informed the learned Chief Metropolitan Magistrate that after serving the chargesheet and receiving reply from the delinquent, decision be taken of conducting a departmental inquiry; if deemed appropriate. With regard to imposing of punishment, learned Chief Metropolitan Magistrate was intimated that after holding inquiry and following the procedure as per the rules, punishment can be imposed; if a case is made out, and therefore, on 28th December 2011, the respondent No. 2 passed an order to hold an inquiry which was numbered as Inquiry No. 6 of 2011 and the petitioner was served with a chargesheet on 28th December 2011 itself with all other papers. The Presenting Officer as well as Inquiry Officer were also appointed. The Presenting Officer as well as Inquiry Officer were also appointed. Copies of the order appointing Inquiry Officer and Presenting Officer coupled with the chargesheet alongwith statement of imputation and list of documents also were furnished to which, he filed reply on 12th March 2012 requesting to exonerate him of all the charges. 14. It is true that after submitting the report to the respondent No. 1, when the directions were issued to the respondent No. 2 that any punishment, if is to be awarded, the same shall have to be done after serving the chargesheet and receiving reply from the delinquent-petitioner and after taking decision on the strength thereof, whether departmental inquiry is to be held. Therefore, it has been left to the discretion of the respondent No. 2 to serve the chargesheet and thereafter on receipt of the reply, required decision was to be taken of whether to hold departmental inquiry or not. Learned advocate for the petitioner is right in contending that if the second inquiry is impermissible even if such directions are issued on administrative side by the High Court to the respondent No. 2 the same cannot be sustained. At the same time, the second contention of the learned advocate for the petitioner in the context of the inquiry being held against the petitioner being Inquiry No. 6 of 2011 cannot be sustained. 15. As noted hereinabove, the decision taken by the internal complaints committee comprising three women members and two male members was solely based on the complaint given by woman employee and the statements recorded of some of the concerned persons, so also the documentary evidences. This nowhere is the case of following Rule 3, 4, 5 & 6 of the Rules of 1971. As could be noted, these Rules are pari materia to Rules 14, 15 & 16 of the Central Civil Services [Conduct] Rules, 1964. 16. This Court, while dealing with a case of an employee who had questioned the action of the disciplinary authority on the report of ICC without following the procedure prescribed under the Rules had upheld his contentions on finding that the Rules which were as far as practicable to be followed were not followed by the ICC. What are the requirements to be fulfilled have been in detail described in the said judgment [S.C.A Nos. What are the requirements to be fulfilled have been in detail described in the said judgment [S.C.A Nos. 4213/2015 with 3563/2015], which deserves reproduction ipsissima verba to draw simili in the instant case, where there is complete absence of following of Rules 3, 4, 5 & 6 of the Rules of 1971. "22. The Central Civil Services (Conduct) Rules, 1964 [hereinafter referred to as 'the CCS (Conduct) Rules'], applies to every employee of the Central Government, except those employees for which some exceptions are made out. 23. Rule 3C of the CCS (Conduct) Rules, 1964, provides that no Government servant shall indulge in any act of sexual harassment of any woman at her work place. Every Government servant who is in charge of work place is expected to take appropriate steps to prevent sexual harassment to any woman at such work place. For the purpose of these Rules, the term sexual harassment has been defined as under: "Sexual Harassment" includes such unwelcome sexually determined behaviour, whether directly or otherwise, as : 1. physical contact and advances; 2. demand or request for sexual favours; 3. sexually coloured remarks; 4. showing any pornography; or 5. any other unwelcome physical, verbal or non-verbal conduct of a sexual nature." 24. Rule 14 of the CCS (CCA) Rules provides for imposition of penalty in Part VI of the Rules. It provides that no order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and rule 15, or in the manner provided by the Public Servants (Inquiries) Act, 1850. It also provides that whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehavior against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, an authority to inquire into the truth thereof. 24.1 What would be relevant is the proviso which has been inserted vide Notification bearing No. 11012/5/2001 dated April 01, 2004 and published on April 10, 2004 in the Government Gazette of India. 24.1 What would be relevant is the proviso which has been inserted vide Notification bearing No. 11012/5/2001 dated April 01, 2004 and published on April 10, 2004 in the Government Gazette of India. In a complaint of sexual harassment within the meaning of Rule 3(C) of the CCS (Conduct) Rules, the complaint committee established in each Ministry or Department or office for inquiring into such complaint shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the complaints committee for holding the inquiry into the complaints of sexual harassments, the inquiry as far as practicable in accordance with the procedure laid down in these rules. 24.2 Sub-rule (3) of Rule 14 provides that where it is proposed to hold an inquiry against a Government servant under this Rule and Rule 15, the disciplinary authority is required to draw up the substance of the imputations of misconduct or misbehavior into definite and distinct articles of charge; and a statement of the imputations of misconduct or misbehavior in support of each article of charge, which shall contain- [a] statement of all relevant facts including any admission or confession made by the Government servant; [b] a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained. 24.3 A copy of such article of charges, the statement of imputations and list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person. 24.4 On receipt of such defence statement, the disciplinary authority may itself inquire into such of the article of charges as are not admitted, or if it considers it so to do, appoint, under sub-rule (2), an inquiring authority for the purpose, and where all the article of charges have been admitted by the Government servant in his written statement of defence, the disciplinary authority shall record its findings on each charge after taking such evidence as it may think fit and shall act in the manner laid down in Rule 15. 24.5 If no written statement of defence is submitted by the Government servant, the disciplinary authority may itself inquire into the articles of charge, or may, if it considers it necessary to do so, appoint, under sub-rule (2), an inquiring authority for the purpose. 24.6 Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding an inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the Presenting Officer to present on its behalf the case in support of the articles of charge. 24.7 A copy of the articles of charge, statement of imputations of misconduct or misbehaviour, a copy of the written statement of the defence, a copy of the statements of witnesses, evidence proving the delivery of the documents, a copy of the order appointing the Presenting Officer, shall be forwarded to the inquiring authority by the disciplinary authority. 24.8 Sub-rule (7) of Rule 14 provides that the Government servant shall appear in person before the inquiring authority on such day and at such time within ten working days from the date of receipt from the inquiring authority of the articles of charge and the statement of the imputations of misconduct or misbehaviour, as the inquiring authority may, by notice in writing, specify, in this behalf, or within such further time, not exceeding then days, as the inquiring authority may allow. The Government servant may taken assistance of any other Government servant posted in any office either at his headquarters or at the place where the inquiry is held, to present the case on his behalf, but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner. The Government servant may also take the assistance of a retired Government servant to present the case on his behalf, subject to such conditions as may be specified by the President from time to time. The Government servant may also take the assistance of a retired Government servant to present the case on his behalf, subject to such conditions as may be specified by the President from time to time. 24.9 If he has not admitted any article of charge in his written statement of defence or has not submitted any written statement of defence, appears before the inquiring authority, such authority shall ask him whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the inquiring authority shall record the plea, sign the record and obtain the signature of the Government servant thereon. 24.10 The inquiring authority shall return a finding of guilt in respect of those articles of charge to which the Government servant pleads guilty and if he fails to appear within the specified time or refuses or omits to plead, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Government servant may, for the purpose of preparing his defence; and may order that the Government servant either to inspect within five days of the order the record and documents specified therein and then submit a list of witnesses to be examined on his behalf. He is permitted to give a notice for production of documents within 10 days of the order and the inquiring authority shall, on receipt of such notice for discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept. On receipt of requisition, the authority having custody shall provide the same before the inquiring authority. If it is against the public interest, the security of the State, it shall inquire and the Government servant can be asked to withdraw the requisition. On the date fixed for inquiry, the oral and documentary evidence by which the article of charges is to be proved shall be produced by or on behalf of the disciplinary authority. 24.11 The witnesses are to be examined by the Presenting Officer, who may be cross-examined by or on behalf of the Government servant. Additional evidence is also permitted to the Presenting Officer. 24.11 The witnesses are to be examined by the Presenting Officer, who may be cross-examined by or on behalf of the Government servant. Additional evidence is also permitted to the Presenting Officer. When the case of the disciplinary authority is closed, the Government servant is required to state his defence orally or in writing. If it is oral, it should be recorded. The evidence of Government servant when is produced, he may choose to examine himself on his own behalf and if he chooses, the witnesses can be examined and re-examined by him. If he closes his evidence and if he has not examined himself, he can be questioned on the circumstances appeared against him in the evidence enabling the Government servant to explain any circumstances appearing in the evidence against him under sub-rule (18) of Rule 14 of the CCS (CCA) Rules. 24.12 Under sub-rule (19) of Rule 14 of the CCS (CCA) Rules, the inquiring authority may, after completion of the production of evidence, hear the Presenting Officer, if any, appointed, and the Government servant, or permit them to file written briefs of their respective case, if they so desire. 24.13 If the Government servant to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex-parte. 24.14 The inquiring authority if is of the opinion that the penalties specified in clauses (v) to (ix) of Rule 11 should be imposed on the Government servant, that authority shall forward the records of the inquiry to such disciplinary authority as is competent to impose such penalties. The disciplinary authority to which the records are so forwarded may act on the evidence on the record or may, if it is of the opinion that further examination of any of the witnesses is necessary in the interest of justice, recall the witness and examine, cross-examine and re-examine the witness and may impose on the Government servant such penalty as it may deem fit. 24.15 Whenever any inquiring authority, after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein, and is succeeded by another inquiring authority which has, and which exercises, such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by its predecessor, or partly recorded by its predecessor. 24.16 After conclusion of the inquiry, a report shall be prepared and it shall contain : (a) the articles of charge and the statement of the imputations of misconduct or misbehaviour; (b) the defence of the Government servant in respect of each article of charge; (c) an assessment of the evidence in respect of each article of charge; (d) the findings on each article of charge and the reasons therefor. If in the opinion of the inquiring authority the proceedings of the inquiry establish any article of charge different from the original articles of charge, it may record its findings on such article of charge. Provided that the findings on such article of charge shall not be recorded unless the Government servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge. The inquiring authority, if is not the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include the report, written statement of defence, the oral and documentary evidence, written briefs, etc. 24.17 Rule 15 of the CCS (CCA) Rules provides that the disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry in accordance with the provisions of Rule 14, as far as may be. The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry with its own effective reasons for disagreement if any with the findings of the inquiring authority and the Government servant shall be asked to submit his written representation or submission to the disciplinary authority within 15 days, irrespective of whether the report is favourable or not to the Government servant. In every case where it is necessary to consult the Commission (Union Public Service Commission), the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing penalty on the Government servant. If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (i) to (iv) of Rule 11 should be imposed on the Government servant, it shall, notwithstanding anything contained in Rule 16, make an order imposing such penalty. However, if the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (v) to (ix) of Rule 11 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed. Rule 16 provides for affording opportunity to the Government servant before imposing minor penalty, whereas sub-rule (5) of Rule 15 does not require hearing of the Government servant where the major penalty is to be imposed. Section 11 of the Sexual Harassment Act provides for conducting inquiry where the respondent is an employee in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed. The procedure is prescribed if no service rules are applicable. Rule 7 of the Sexual Harassment Rules provides that at the time of filing the complaint, the complainant shall submit to the Complaints Committee, six copies of the complaint along with supporting documents and the names and addresses of the witnesses. On receipt of such complaint, the Complaints Committee shall send one of the copies received from the aggrieved woman under sub-rule (1) to the respondent within a period of seven working days. On receipt of such complaint, the Complaints Committee shall send one of the copies received from the aggrieved woman under sub-rule (1) to the respondent within a period of seven working days. The respondent shall file his reply to the complaints along with his list of documents, and names and addresses of witnesses, within a period not exceeding ten working days from the date of receipt of the documents specified under sub-rule (1) and the Complaints Committee shall make an inquiry into the complaint in accordance with the principles of natural justice. The Complaints Committee shall have the right to terminate the inquiry proceedings or to give an ex parte decision on the complaint, if the complainant or respondent fails, within sufficient cause to present herself or himself for three consecutive hearings convened by the Chairperson or President Officer, as the case may be. Provided that such termination or ex parte order may not be passed without giving a notice in writing, fifteen days in advance, to the party concerned. The parties shall not be allowed to bring in any legal practitioner to represent them in their case at any stage of the proceedings before the Complaints Committee. In conducting the inquiry, a minimum of three Members of the Complaints Committee including the President Officer or the Chairperson, as the case may be, is required to be present. Rule 8 provides that the Complaints Committee at the written request of the aggrieved woman may recommend to the employer to : (a) restrain the respondent from reporting on the work performance of the aggrieved woman or writing her confidential report, and assign the same to another officer; and (b) restrain the respondent in case of an educational institution from supervising any academic activity of the aggrieved woman. Rule 9 of the Sexual Harassment Rules provides that except in cases where service rules exist, where the Complaints Committee 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, to take any action including a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service or undergoing a counselling session or carrying out community service. The provision of appeal is provided as discussed hereinabove to the appellate authority notified under clause (a) of section 2 of the Industrial Employment (Standing Orders) Act, 1946, subject of course to the provision of section 18 of the Sexual Harassment Act. The proviso to Rule 14 of the CCS (CCA) Rules says that the Complaints Committee established by the Department shall be deemed to be the Inquiring Authority appointed by the disciplinary authority for the purpose of these Rules and the Complaints Committee. Thus, on cumulative reading of all these Rules together, it requires following of Rules 14 and 15 of the CCS (CCA) Rules as far as practicable in the case of such proceedings against an employee and if no rules are provided, then the procedure is to be followed under the Sexual Harassment Rules, particularly Rules 7 and 8, which emphasize on following the principles of natural justice." 17. Indisputably, the ICC appointed by the respondent No. 2 was required to act as an Inquiry Authority and as far as practicable, it needed to follow Rules 3, 4, 5 & 6 of the Rules 1971. Assuming that these rules, in absence of any specific incorporation had no applicability, then also, the Sexual Harassment of Women at Workplace [Prevention, Prohibition & Redressal] Rules, 2013 also would have applicability and even those rules as could be noticed from the record have not been followed. 17.1 If the respondent No. 1 or 2 would have chosen to give its dissenting view or on disagreeing with the report of majority of the members would have chosen to impose any punishment upon employee concerned, such action would have been extremely vulnerable as there is a complete absence of following of any of these rules on the part of the ICC. 18. The petitioner possibly also was aware of this aspect, and therefore, except raising routinely at initial stage general contention of exonerating him of all the charges, he proceeded with the inquiry all along. He was also assisted by the lawyer and for four years, this Inquiry No. 6 of 2011 has continued. It almost has reached at penultimate stage. However, in his further statement, the petitioner chose to seriously allege against two of the women members of the Committee and the Presenting Officer, therefore chose to call them as the witnesses "X" & "Y". It almost has reached at penultimate stage. However, in his further statement, the petitioner chose to seriously allege against two of the women members of the Committee and the Presenting Officer, therefore chose to call them as the witnesses "X" & "Y". The concerned members also initially resisted such a move. However, later on, gave up the plea of not examining the member and after that the witness "X" has been examined by the Inquiry Officer on two different dates. It is only thereafter the petitioner has chosen to move this Court challenging the action of the disciplinary authority after all these years. He moved an application in the departmental proceedings, however, when the same was chosen to be heard at the final stage, he moved this Court. This being a vital question of law, he has been permitted to raise the same, but according to this Court, knowing fully well that the inquiry conducted earlier by the complaints committee was in no manner in accordance with the rules, he has taken a chance by preferring the present writ petition. Had the petitioner been awarded any punishment as a result of the earlier inquiry, it would not at all be difficult for him to question the action of the respondents in absence of following of any procedure, as provided for the safeguard of the employees. The Apex Court while mandating ICC for inquiring into the complaints of the working women of sexual harassment at the workplace also provided for carrying out inquiry broadly following the procedure prescribed under the Rules. No further inquiry would be required and the report shall be deemed to be the report of the Inquiring authority. Proviso to GCS {Discipline & Appeal} Rules also guarantees speedy redressal of complaint and also spares the complaint from undergoing the very process of inquiry twice. It also assumes element of sensitivity in the working of ICC which may go amiss in Inquiry Officer in regularly/routinely held departmental proceedings. Yet, it does not and cannot dilute the importance of procedural safeguards while conducting departmental proceedings. 19. No separate procedure for conducting complaint of sexual harassment by the Complaint Committee was prescribed when inquiry No. 2 of 2010 was conducted and therefore Complaint Committee was expected to follow the procedure as far as practicable, as prescribed in GCS [Discipline & Appeal] Rules. 19. No separate procedure for conducting complaint of sexual harassment by the Complaint Committee was prescribed when inquiry No. 2 of 2010 was conducted and therefore Complaint Committee was expected to follow the procedure as far as practicable, as prescribed in GCS [Discipline & Appeal] Rules. Neither the procedure prescribed under these rules are followed in conducting Inquiry No. 2 of 2010 nor any other rules are followed. Bearing all these aspects, when respondent No. 2 has chosen to initiate Inquiry No. 6 of 2011, no fault can be found nor would it require any indulgence. The report of the majority of members of inquiry No. 2 of 2010 since had tilted in favour of the petitioner, it suited him to say that the report of the earlier committee should be construed and deemed as the report of the Inquiry Authority. Had it gone against him, he surely would not have taken the same stand. The petitioner may choose to sway from one end to another as per his interest, but the disciplinary authority is expected to follow the law strictly and as could be noticed in the instant case also, the respondent No. 1 has rightly guided the respondent No. 2 to first serve upon the petitioner, a chargesheet and call for his reply and than decide whether departmental inquiry to be proceeded against him or not. In respect of imposition of penalty also, he was advised not to do so unless after the inquiry, the material so emerges from the record. Thus, holding of earlier inquiry shall necessarily be construed as preliminary report. 20. This Court is conscious of the fact that in the year 2013, the Supreme Court needed to direct the Central Government as well as the State Governments to ensure that every department formulate its own internal complaints committee or the local complaint committee, as the case may be, for inquiring into the complaints relating to sexual harassment of women at the workplace. It is in Medha Kotwal's decision that the Apex Court directed that necessary provision be added in the disciplinary rules meant for the employees of the Central Government as well as State Governments. The Supreme Court commanded to respond back on formation of such complaints committee. The law on the subject and the rules have come into existence thereafter. It is in Medha Kotwal's decision that the Apex Court directed that necessary provision be added in the disciplinary rules meant for the employees of the Central Government as well as State Governments. The Supreme Court commanded to respond back on formation of such complaints committee. The law on the subject and the rules have come into existence thereafter. So much of the clarity was possibly missing in the year 2010 and in absence of proviso to Rule 9 of GCS [Discipline & Appeal] Rules and also for want of following of procedure as far as practicable so also in absence of other prescribed procedure to deal with such complaints, the internal complaints committee could not be construed as Inquiring Authority nor its report to be accordingly treated as the report of Inquiry Authority. Proviso has been inserted after the judgment delivered in case of Medha Kotwal Lele [Supra] by the Apex Court. Had broad procedure been followed while conducting earlier inquiry No. 2 of 2010, then also, such a stand may have been permissible. 21. Resultantly, writ petition being devoid of merits, the same deserves to be dismissed and is accordingly dismissed. Notice discharged. The Inquiry Officer is directed to complete inquiry at the earliest. Petitioner shall cooperate in the expeditious hearing and disposal of the same.