UNION OF INDIA Vs. PRABIR KUMAR

JUDGEMENT

(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 1 st 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.) 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. 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. Chaturvedi's 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.