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Central Civil Services (Classification, Control and Appeal)Rules, 1965 – r. 11(IX), r. 14(2) – Central Civil Services (Conduct)Rules, 1964 – r. 3C – Allegation of sexual harassment at work place– Defying the principles of natural justice – Appellant was appointedby the respondent no.2-Goa University – Appellant was accused ofsexual harassment by several girl students – Appellant was servedwith notice to explain charges levelled against him – Inquiryproceedings took place thereafter, in the month of May 2009, when12 hearings, most of them back to back, were conducted by theCommittee – Appellant was unable to appear due to health reasons,however, he had sought extension of time, which was denied –Proceedings proceeded ex-parte and submitted its report establishingsexual harassment by the appellant – Committee recommended histermination from service – The Executive Council (EC) acceptedthe report submitted by the Committee and the appellant was placedunder suspension with immediate effect – EC proposed to conductan inquiry against him under Rule 14 of CCS (CCA) Rules – However,appellant was informed that in the light of an order passed by theSupreme Court in Medha Kotwal’s case, the report of the ComplaintsCommittee for Prevention of Sexual Harassment of Women atWorkplace shall be deemed to be an Inquiry Report under the CCS(CCA) Rules which shall be binding on the disciplinary authorityfor initiating disciplinary action against the government servant –Disciplinary Authority dismissed the appellant from service –Appellant filed writ petition before the High Court, which wasdismissed – On appeal, held: It is an admitted position that theinquiry proceedings were aborted at the initial stage itself and itwas the Report of the Committee submitted earlier, that was actedupon by the EC – The Committee itself was unclear as to the scopeof its inquiry, the appellant cannot be blamed for harbouring animpression that the remit of the Committee was confined to fact finding alone and i t was not discharging the funct ions of adisciplinary committee, as contemplated under the service Rules –It is also noteworthy that the time span prescribed under the CCS(CCA) Rules for concluding an inquiry is ordinarily within a periodof six months from the date of receipt of the order of appointment –In the instant case, the entire process was wrapped up in flat 39days – This shows the tearing hurry in which the Committee was tosubmit its Report – The undue haste demonstrated by the Committeefor bringing the inquiry to a closure, cannot justify curtailment ofthe right of the appellant to a fair hearing – When the legitimacy ofthe decision taken is dependent on the fairness of the process andthe process adopted itself became questionable, then the decisionarrived at cannot withstand judicial scrutiny and is wide open tointerference – The discretion vested in the Committee for conductingthe inquiry has been exercised improperly, defying the principles ofnatural justice – As a consequence thereof, the impugned judgmentupholding the decision taken by the EC of terminating the servicesof the appellant, duly endorsed by the Appellate Authority cannotbe sustained.Constitution of India – Art. 309 – Conditions of service –Scope – Art. 309 does not by itself provide for recruitment orconditions of service of Government servants, but confers this poweron the appropriate legislature to make the laws and on the Presidentand the Government of a State to make rules relating to these matters– However, any Act or Rule that violates the rights guaranteed to agovernment servant under Article 311, would be void – Similarly,such an Act or Rule would be treated as void if it violates any of thefundamental rights guaranteed under Part III of the Constitution.Constitution of India – Art. 310 – Doctrine of Pleasure –Article 310 embodies the “Doctrine of Pleasure” and in the contextof Government servants, relates to their tenure of service – Theorigin of Government servants may be contractual, once appointedto the post or office, they acquire a status and their rights andobligations are no longer determined by the consent of both theparties, but are governed by the Statute or Statutory Rules.Constitution of India – Art. 311 – Manifestation of thePrinciple of Natural Justice – To provide a sense of security oftenure to Government servants, the framers of the Constitution have incorporated safeguards in respect of the punishment or dismissalor removal or reduction in their rank as provided for in Clauses (1)and (2) of Article 311 – At the same time, being mindful of the verysame public interest and public good which does not permit thatGovernment servants found to be corrupt, dishonest or inefficientbe continued in service, a remedy is provided under the secondproviso to Clause (2) of Article 311 whereunder their services canbe dispensed with, without conducting a disciplinary inquiry.Constitution of India – Art.14 – A Bedrock of Principles ofNatural Justice – Principles of natural justice that are reflected inArticle 311, are not an empty incantation – They form the verybedrock of Article 14 and any violation of these principlestantamounts to a violation of Article 14 of the Constitution – Denialof the principles of natural justice to a public servant can invalidatea decision taken on the ground that it is hit by the vice of arbitrarinessand would result in depriving a public servant of equal protectionof law.Principles/Doctrines – Principle of Natural Justice – Twinanchors : Nemo Judex In Causa Sua and Audi Alteram Partem – Thetwin anchors on which the principles of natural justice rest in thejudicial process, whether quasi-judicial or administrative in nature,are Nemo Judex In Causa Sua, i.e., no person shall be a judge in hisown cause as justice should not only be done, but should manifestlybe seen to be done and Audi Alteram Partem, i.e. a person affectedby a judicial, quasi-judicial or administrative action must beafforded an opportunity of hearing before any decision is taken.Administration of Justice – Fair action and impartiality inservice jurisprudence – Courts interpret statutory provisions in syncwith the aforesaid principles of natural justice on a premise that nostatutory authority would violate the fundamental rights enshrinedin the Constitution – Further when it comes to authorities that areexpected to discharge judicial and quasi-judicial functions, the ruleof audi alteram partem applies with equal force – Reasonablenessinfuses lifeblood in procedural matters, be it elements of the notice,the contents of the notice, the scope of inquiry, the material availableor an adequate opportunity to rebut such material and all of this isto avoid miscarriage of justice at any stage. Central Civil Services (Classification, Control and Appeal)Rules, 1965 – r. 14 – Expression “as far as is practicable” – Theuse of the expression “as far as is practicable” indicates a play inthe joints available to the Complaints Committee to adopt a fairprocedure that is feasible and elastic for conducting an inquiry ina sensitive matter like sexual harassment at the workplace, withoutcompromising on the principles of natural justice.Administration of Justice – Reasonableness into theprocedural regime in Service Matter – The cardinal principlerequired to be borne in mind is that the person accused of misconductmust be informed of the case, must be supplied the evidence insupport thereof and be given a reasonable opportunity to presenthis version before any adverse decision is taken – Similarly, theconcerned employer is also expected to act fairly and adopt aprocedure that is just, fair and reasonable – The whole purpose isto breathe reasonableness into the procedural regime but, the testof reasonableness cannot be abstract – It has to be pragmatic andgrounded in the realities of the facts and circumstances of a case.Sexual Harassment of Women at Work Place (Prevention,Prohibition and Redressal) Act, 2013 – To fulfil the promise that thePoSH Act holds out to working women all over the country –Appropriate directions issued. |
