ORDER
P. Shanmugam, J. (Vice Chairman)
1. The applicant challenges the order of penalty of reducing his pay from Rs. 2840/- to Rs. 2550/- per month for a period of 3 years by the Disciplinary Authority as confirmed in appeal.
2. The facts of the case are as follows: The applicant is working as Group-D employee in the office of the Accountant General in Karnataka at Bangalore. On the basis of a written complaint dated 9.9.1999 by 38 lady officials of the Accountant General’s office making serious allegations of sexual harassment memorandum of charges containing 4 articles dated 3.1.2000 was served on the applicant. A domestic inquiry was held and a report dated 25.7.2000 was submitted. However, after considering the representation of the applicant dated 2.10.2000, the matter was remitted back for fresh inquiry. The fresh inquiry was conducted and a report dated 15.5.2002 was submitted and after considering the representation of the applicant dated 10.6.2002 and his expression of repentance and seeking mercy in his representation dated 18.6.2002, the Disciplinary Authority by order dated 9.7.2002 (Annexure-A6) imposed a penalty of reduction of pay of the applicant from Rs. 2840/- per month to Rs. 2550/- per month for a period of three years and also ordered that he will not earn increments of pay during the period of reduction and on the expiry of this period, the reduction will have the effect of postponing his future increments of pay. On appeal filed by the applicant dated 30.7.2002, the penalty was confirmed. The application is against these orders.
3. The main submissions of the learned Counsel for the applicant are summarised are as follows: That the department has not followed the principles of natural justice inasmuch as the department did not supply the copy of the complaint nor permitted the applicant to cross-examination lady witnesses. The specific article of charge viz., Article-II in which the applicant is alleged to have blocked the passage and obstructed Ms. H.G. Lakshmi has not given any statement nor examined. The proceedings are conducted unfairly and the punishment imposed is disproportionate to the charges. The copies of the statement of witnesses were not furnished to him to have an effective defence. The case is created and that he was victimised. The Inquiry Officer was biased against the applicant and for all these grounds the orders of punishment are to be set aside.
4. Mr. M. Vasudeva Rao, Learned Senior Central Government Standing Counsel appearing on behalf of respondents 1 to 4 submitted at the outset that the department had shown maximum latitude in the case and has provided the applicant maximum opportunity in the disciplinary proceedings. He submitted that the second inquiry was conducted to alleviate the grievance of the applicant that the applicant was not familiar with English language to explain to the applicant in the language known to him viz., Tamil. The witnesses were examined in his presence and he was given opportunity to cross-examine them which he did not avail of and that at no point of time the applicant wanted orally or in writing the copies of the statements of those witnesses. He had never sought the statements and never complained about the failure to furnish statements. He had not been victimised and harassed. These allegations are made for the first time just to get over the proved charges against the applicant. According to him the department considering serious charges proved against the applicant and based on the judgment of the Hon’ble Supreme Court in Vishaka and Ors. v. State of Rajasthan and Ors., JT 1997(7) SC 384, to take a serious view, but however because of the mercy petition pleading that the applicant will restart his life afresh a lenient view was taken and penalty of reduction in pay has been imposed. The Appellant Authority has considered the appeal properly and rightly confirmed the penalty. There is absolutely no grounds to interfere with the orders.
5. Learned Counsel for respondents 5 to 10 submits that the application is liable to be dismissed for misjoinder of parties and respondents 5 to 10 are not at all necessary parties for the disposal of the application and no relief is claimed against them. Besides he submitted that serious defamatory imputations are made in the application which deserve to be deprecated and he be permitted to file criminal complaint and to proceed against the applicant in criminal Court and initiate civil proceedings since the application being a public document and the imputations of misconduct are made knowing full well that they are false and made only to malign and pressurise them for having made a complaint. He prayed that a serious view be taken by the Tribunal against such conduct of the applicant who utilised the Court for damaging respectable officers of the department. He therefore, prayed that the application be dismissed with exemplary costs reserving liberty to these respondents including the department to take suitable action against the applicant for making such defamatory and scurrilous statements in the application.
6. We have heard the learned Counsel in extenso, gone through the proceedings and records and considered the matter carefully.
7. A complaint was lodged to the Principal Accountant General by 38 women employees on 9.9.1999 alleging misconduct of sexual harassment against the applicant. The matter was also referred to the Complaints Committee on Sexual Harassment and the Committee as per its proceedings dated 24.9.1999 opined that there is a clear case of “sexual harassment” as per explanation (a), (b) and (e) of Rule 3-C of the Central Civil Services (Conduct) Rules, 1964 and that there is a clear case of misconduct requiring disciplinary action as per Rules. On the basis of the complaint the disciplinary proceedings were initiated under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules 1965 against the applicant by issuing memorandum of charges dated 3.1.2000. The articles of charge are extracted below:
ARTICLE-I
“Shri K. Pushparaj, Group-D Peon, while functioning as Group-D Peon visited Bills-I section of office of the Principal Accountant General (Audit) I, Karnataka, Bangalore, at 5.20 p.m. On 8.9.1999 used abusing and unparliamentary language towards senior officials and also used vulgar words and abused lady Auditors of the section. He also put up unwelcome sexually determined behaviour amounting a demand or request for sexual favour pointing out to the women officials of the section. This act of the official tantamount to misconduct involving unbecoming of Government servant and sexual harassment under Rule 3(1 )(iii) and explanation (a)(b)(e) under Rule 3(c) of the CCS (Conduct) Rules, 1964.
ARTICLE-II
Shri K. Pushparaj, Group-D Peon, while working in the office of the Principal Accountant General (Audit) I, Karnataka, Bangalore, has blocked the passage of ‘C Block staircase on 8.9.1999 to obstruct Ms. H.G. Lakshmi, senior Auditor and not allowing her to climb up or to climb down to escape. Shri K. Pushparaj, therefore, committed misconduct tantamounting unbecoming of a Government servant and sexual harassment under Rule 3(1)(iii) and explanation (a)(b)(e) of Rule 3(c) of the CCS (Conduct) Rules, 1964.
ARTICLE-III
Shri K. Pushparaj, Group-D Peon while working in the Office of the Principal Accountant General (Audit) I, Karnataka, Bangalore, has a habit to misbehave with the lady officials of the office, makes unwelcome, physical, verbal and nonverbal conduct of a sexual nature by coming very close to them, making sounds of kissing, blowing cigarette smoke on lady officials, blocking the way of women on the staircase and corridors, talking and making obscene and vulgar gestures at lady officials, demanding sexual favour, frightening them, creating an atmosphere of terror and fear in their minds and making their presence at work place unsafe and mentally fearful. He also visits the bills section unnecessarily. This act of Shri K. Pushparaj tantamounts to misconduct and an act unbecoming of a Government servant and of the nature of sexual harassment of working women at work place. Shri K. Pushparaj, therefore, violated Rule 3(1)(iii) and explanation (a)(b)(e) of Rule 3(c) of CCS (Conduct) Rules, 1964.
ARTICLE-IV
Shri K. Pushparaj, Group-D while working in the office of the Principal Accountant General (Audit) I, Karnataka, Bangalore, absented from his place of duty in House Keeping section without permission on 8.9.1999 between the period from 10. a.m. to 10.40 a.m., 10.50 a.m. to 11.30 a.m., 12.15 p.m. to 3.20 p.m., 3.30 p.m. to 5.40 p.m. This act of Shri K. Pushparaj, Group-D tantamounts to misconduct involving lack of devotion to duty and unbecoming of a Government servant and therefore he has violated Rule 3(1)(ii) and 3(1)(iii) of CCS (Conduct) Rules, 1964. He has violated para 2.13 of Manual of General Office Procedures which says that no official should be absent from his seat in the section during office hours except for official work and that also only with the permission of his superior officer.”
The applicant had submitted his statement of defence dated 15.1.2000. Any inquiry was conducted and Inquiry Report dated 14.8.2000 was submitted.
8. The main objection of the applicant to that report is that there is violation of principles of natural justice under the following heads viz., (i) he was not provided with list of witnesses, and (ii) he was not given opportunity to cross-examine the witnesses. Though a departmental inquiry was conducted by the Inquiry Officer, on the objection of the applicant that the Inquiry Officer and the Presenting Officer did not conduct inquiry in a vernacular language viz., Tamale which the applicant well versed and that no women employee were called by the Inquiry Officer to depose in the inquiry as witnesses against him thereby depriving him an opportunity to cross-examine the witnesses. On consideration of these the Disciplinary Authority remitted the matter back for conducting a fresh inquiry for providing further opportunity to the applicant. Thereafter, one Sri S. Sundarajan, Senior Accounts Officer was appointed as Inquiry Officer and Sri V. Balasubramanian, AAO as Presenting Officer who were conversant with Tamale language. From the report of the Inquiry Officer dated 15.5.2002 it is seen that the applicant informed the Inquiry Officer that he is not able to take the assistance of a defence assistant, that the presenting Officer translated and read out the charges in Tamale, that the proceedings were conducted in Tamale and translated into English by the Inquiry Officer. The inquiry report says that in the third and final sitting of the inquiry held on 6.3.2002 6 lady officers were examined as witnesses and their evidence in the presence of the applicant was recorded. The report says “The charged official was asked whether he would like to cross-examine the witnesses. Sri Pushparaj replied that he did not want to cross examine the witnesses. In the proceedings of the inquiry dated 6.3.2004 it is stated that six of the lady officials appeared as witnesses and Pushparaj also appeared before the Inquiring Authority. The witnesses were examined by the Inquiring Authority in the presence of the applicant and the proceedings pertaining to the applicant’s part were conducted in Tamale and translated by the Inquiry Officer for the purpose of drafting the proceedings. The portion of the proceedings in which questions put by the Inquiry Officer and answers by the applicant are extracted herebelow:
“The following officials who were summoned as witnesses appeared before the Enquiry Authority:
(1) Smt. Parimala (2) Smt. Sushma Karunakaran (3) Smt. Vyjayanthi (4) Smt. Malini (5) Smt. Shubha (6) Smt. Mrunalini Devi Mr. Pushparaj also appeared before the Enquiry Authority. The witnesses were examined by the Inquiring Authority in the presence of Sri Pushparaj. The proceedings pertaining to Sri Pushparaj's part were conducted in Tamale and translated by the Enquiry Officer for the purpose of drafting the proceedings. The questions put by the Enquiry Officer and the replies given by the witnesses are detailed below: PUSHPARAJ: "Enquiry Officer : There were representations from many ladies including those present in Bills I section of Audit -I when you went to Bills-I section on the evening of 8th September 1999 at 5.20 p.m. and started mis-behaving with them. Do you have any thing to say in this regard? Pushparaj: It is true that I went to the Bills-I section to enquire about the status of my PF application and I did not misbehave with the ladies present in the section. Enquiry Officer: The entire staff of Bills-I section (Audit-I) have given a report on 9th September 1999 complaining against your unbecoming behaviour on 8.9.1999 in Bills-I section. Do you agree with the contents of the report given by the staff of Bills-I section on 9th September 1999 to the Principal Accountant General? Pushparaj: No I do not agree. Inquiry Officer: The witnesses have given specific statements complaining against your bad behaviour with ladies and also about your specific misbehaviour with the ladies in Bills-I section on the evening of the 8th September 1999. Do you say anything in this regard? Pushparaj: No. I do not want to say anything in this regard. Inquiry Officer: Do you want to cross-examine with any of them? Pushparaj: No. I do not want to cross-examine any of them." xxx xxx xxx Sd/- K. Pushparaj Sd/- Malini P Sd/- S. Sundara Rajan 6.3.2002 6.3.2003 Enquiry Officer Sd/- Vyjayanthi Sd/- Sushama Karunakarna, Sd/- GA Subha, 6.3.2002 6.3.2002 6.3.2002 Sd/- Mrunalini Devi, Sd/- M.S. Parimala, 6.3.2002 6.3.2002. Received a copy. Sd/- K. Pushparaj 6.3.2002."
The Inquiry Officer concluded the inquiry on the third sitting of the inquiry on 6.3.2002 and submitted a report finding the applicant guilty of all the charges. The second domestic inquiry came to be constituted on the specific objection of the applicant that the lady officials who had given complaint were not examined and that the proceedings were not understood by him. In the light of this specific demand the matter was remanded and second inquiry was constituted. Therefore the applicant as well as the Inquiry Officer and the Presenting Officer were fully aware that the applicant must be appraised of the charges and allegations in vernacular language, witnesses to be examined and the applicant be allowed to cross-examine them. That has what has happened as could be seen from the inquiry report. However, the applicant did not avail the assistance of a defence assistant nor he sought the copies of statements while the charges were explained to him. He had categorically declined to cross-examine the witnesses. Therefore, the contention of the applicant that he was not allowed to cross-examine the witnesses is unsustainable. The Disciplinary Authority after going through the Inquiry Officer’s report found that the applicant did not cross-examine the witnesses and was convinced that while there was a specific complaint by more than six lady officials, there was not a single complaint from the applicant against any official for discriminating him and that there is no proof that in the whole of office the applicant was singled out by ladies in the office for victimising him by framing charges and that there was no complaint against other male employees in the office. Respondents 5 to 10 filed their reply wherein they have admitted that in the inquiry they were cited as witnesses and were examined. Though an opportunity was given to cross-examine them, the applicant had refused to do so. Therefore, the stand of the applicant that he was not allowed to cross-examine the witnesses cannot be accepted.
9. Smt. H.G. Lakshmi is one of the signatories to the complaint dated 9.9.1999 filed by the 38 lady officers of the department. The statement of Smt. H.G. Lakshmi was taken by the complaints Committee and is found in Annexure-R4. The other three ladies who have deposed before the Inquiry Officer have reiterated the complaint of sexual harassment including use of vulgar language and other allegations. The recording of their statement before the Complaints Committee in its proceedings dated 24.9.1999 and their statement before the Inquiry Officer reiterating their complaint dated 9.9.1999 have been factually found to be correct by the Inquiry Officer and confirmed by the Disciplinary Authority. All the officials make out the following case against the applicant; (a) use of abusive unparliamentary language and vulgar words towards the lady officers, (b) demand or request for sexual favours and (c) making obscene and vulgar gestures, making sounds of kissing on the passing of ladies and blocking passages for ladies and this kind of conduct was going on for the past 5 years with their complaint going unnoticed. The proceedings of the complaints Committee found that the applicant was drunk on 8.9.1999 and entered Bills-I section and pointing out to the women officials he openly announces that he is ready to spend from Rs. 8,000/- to Rs. 10,000/- on anybody staying with him. It was found that the applicant was making sounds of kissing and blowing cigar smoke on girls face and used to come very close to them even if there was lot of space to move around. He appears to be in the habit of blocking the way of women in stair cases and corridors and startling them with unexpected movements. Some times he used to come carrying liquor bottles in his hands by which women were frightened and did not feel safe when he was around. He used to make vulgar gestures at women with direct or indirect encouragement of other male colleagues and ultimately the committee opined that there was unwelcome physical, verbal, non-verbal conduct of sexual nature and there is a case of sexual harassment. The committee’s findings and the complaints were made the foundation for the charges and imputation of misconduct against the applicant and the written as well as oval evidence given by six lady officials have clearly confirmed the statement and the Inquiry Officer has found the charges as proved on the basis of their evidence. As stated above, the only objection to the Inquiry Report was that the applicant was not allowed to cross-examine the witnesses. In the light of the fact that the second domestic inquiry was constituted only for the purpose of examining lady witnesses and permitting the applicant to cross-examine them and in the light of categorical statement of the Inquiry Officer that he had explained the applicant in Tamale language the charges and asked him whether he would like to cross-examine the witnesses, the applicant replied that he did not want to cross-examine the witnesses, the statement of the applicant that he was not permitted to cross-examine the witnesses cannot be taken to be true and the same has been made only to make out a case of violation of principles of natural justice. The stand he signed the statement without knowing content is impropable and taken for the purpose of the case.
10. The Disciplinary Authority has given the reason as to why he had to take a lenient view in the matter viz., that the had taken note of the applicant’s latter 18.6.2002 expressing repentance for his past, appealed and prayed for mercy to help him work again and to restart his life for the sake of looking after his aged parents. On the basis of this, the penalty of reduction in pay came to be imposed. On the face of the charge having been proved, the penalty commensurate to the charge ought to have been imposed. Taking note of repentance for the past and assurance of future conduct would not take away the severity of the misconduct by the applicant. The Hon’ble Supreme Court in Vishaka’s case (supra) held that each incident of sexual harassment violates fundamental right of gender equality and right to life and liberty. It is a clear violation of rights under Articles 14, 15 and 21 of the Constitution. One of the logical consequences of such incident is also the violation of the victim’s fundamental right under Article 19(1)(g). The fundamental right to carry on any occupation, trade or profession depends on the availability of safe working environment. The primary responsibility for ensuring such safety and dignity is of the legislature and the executive. As per the guidelines prescribed by the Hon’ble Supreme Court their Lordships held:
“It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedure for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.”
A direction was issued to strictly observe for the preservation and enforcement of the right to gender equality of the working women. Therefore, there cannot be any sympathetic consideration coming in the case of sexual harassment. The Appellate Authority after considering the grounds raised in the appeal and taking note of the repentance on the part of the applicant and after finding it to be a clear case of sexual harassment confirmed the penalty.
11. The learned Counsel for the applicant referred to the judgment in State of U.P. v. Mohd. Sharif, AIR 1982 SC 937=1982(2) SLJ 259 (SC), in support of his contention that there is denial of reasonable opportunity as the charge sheet did not mention the date and time of the alleged misconduct, even the location of the incident in the vast forest and the copies of statement of witnesses recorded during the preliminary inquiry were not furnished to the delinquent at the time of disciplinary inquiry and held that there was denial of opportunity to defend the disciplinary inquiry. In Kashinath Dikshita v. Union of India and Ors., AIR 1986 SC 2118=1986(2) SLJ 279 (SC), non-supply of copies of statement of witnesses and copies of documents relied on by the Disciplinary Authority violates Article 311(2). In that case Government refused to furnish copies of the statement of witnesses at the stage of preliminary inquiry and that Government failed to show that no prejudice has caused to the delinquent on account of non-supply of copies of documents. In Kumaon Mandal Vikas Nigam Limited v. Girja Shankar Pant and Ors., AIR 2001 SC 24, a show cause notice served without documents, inquiry held without any date, examination of witnesses without appointing Presenting Officer, dismissal order passed few hours after personal hearing were held to be in hottest haste suffering from bias. The facts and the principles laid down in the above judgments in our view will not apply to the facts of the case on hand and the applicant had at no point of time requested for copies of the statements and they were never refused to be furnished to the applicant. On the other hand, the Inquiry Officer explained the charges and translated the same to the applicant.
12. 6 witnesses were examined in the presence of the applicant and that he had clearly and categorically stated that he does not want to cross-examine any one of them and it is also on record that the proceedings were conducted in Tamale in so far as the applicant is concerned and translated by the Inquiry Officer. The obvious inference is that applicant did not want to face their deposition in cross-examination and had chosen not to cross-examine them. Therefore, on facts there are absolutely no grounds to say that the applicant did not have sufficient opportunity to defend his case. In High Court of Judicature at Bombay v. Udaysingh, AIR 1997 SC 2286, the Hon’ble Supreme Court held that it is settled law that the Tribunal has only power of judicial review of the administrative action relating to service conditions of employees. It is the exclusive domain of the Disciplinary Authority consider the evidence on record and record findings whether the charge has been proved or not. Their Lordships observed as follows:
“It is equally settled law that technical rules of evidence have no application for the disciplinary proceedings and the authority is to consider the material on record…. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in view of the Court or Tribunal.”
In Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759=2000(1) SLJ 65 (SC), the Hon’ble Supreme Court while considering the nature of approach expected from the law Courts to cases involving sexual harassment held that such cases are required to be dealt with great sensitivity. Sympathy in such cases in favour of the delinquent officer is wholly misplaced and mercy has no relevance. Their Lordships while considering the tender of unqualified apology, it was held that it is too late to show any sympathy to the delinquent in such a case. Any lenient action in such a case is bound to have a demoralising effect on working women. Their Lordships held sympathy in such cases is uncalled for and mercy is misplaced. Their Lordships further held that while dealing with cases of sexual harassment at the place of work of female employees it is to be borne in mind 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 implications, 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 or creating an intimidating or hostile working environment for her. Hon’ble Supreme Court directed that the department must examine the entire material to determine the genuineness of the complaint. The statement of the victim must be appreciated in the background of the case. Where the evidence of the victim inspires confidence, the Courts are obliged to rely on it.
13. Applying the principle laid down by the Hon’ble Supreme Court we have no hesitation in holding that there is sufficient evidence documentary and oral by the victims themselves of the sexual harassment in different form. It is also their evidence that the applicant is behaving in this manner for the past several years and that he has been coming to the office in an inebriated condition.
14. The applicant has impleaded 6 respondents viz., respondents 5 to 10 and in ground No. 4(d) sought permission of the Tribunal to disclose the alleged real purpose and person behind the whole incident. He refers to an alleged love affair with the 5th respondent who is already married and imputation of serious personal allegations are made stating that the 5th respondent in the linchpin against all these incidents. It is further stated that respondents 6 to 10 and one Smt. H.G. Lakshmi who subsequently withdrawn herself from devils group and did not show her name in the so called list of witnesses colluded with her for reasons best known to them. These imputations are ex-facie defamatory. There is absolutely no reason to implead respondents 5 to 6 as party respondents in this O.A. for more than one reason. No relief is sought for against these respondents and secondly relief sought is only against the orders of punishment passed by respondents 1 to 4. The allegations now made in this application were ever made before the concerned officials nor defence witnesses were cross-examined to prove the alleged case of the applicant against these respondents. Therefore, impleading respondents 5 to 10 who were complainants/eye witnesses and who are not necessary parties is vexations and the application is liable to be dismissed on the ground of misjoinder of parties. The applicant also should be held liable for making unnecessary scurrilous allegations against them without any basis or relevance to the relief sought for in the application. They are made, as rightly pointed out to prejudice and embarrass them for having given evidence. It is a clear abuse of the process of this Tribunal. Therefore, the applicant has made himself liable to get the application dismissed with exemplary costs in so far as respondents 5 to 10 are concerned and also to give them liberty to proceed against the applicant both in civil and criminal Courts for appropriate relief. The allegations in our view are totally unfounded and made with ulterior motive to threaten and to malign the name of the officials who have given evidence in the domestic inquiry.
14A. In reference to the charge of unauthorised absence on 8.9.1999, the Inquiry Officer found that the applicant has admitted that he was absent during the hours mentioned in the charge but he stated that he had obtained oral permission. The finding is that the applicant absented himself form his section 4 times without proper permission and his conduct amounts to misconduct involving lack of devotion to duty unbecoming of a Government servant. The Disciplinary Authority has considered this aspect and after analysing the evidence on record found that Article-4 of the charge has been proved beyond doubt. The Inquiry Officer and the Disciplinary Authority have given reasons to sustain this charge. The records and the oral evidence has confirmed the misconduct. The applicant did not cross-examine Sri K. Shyamasundar from whom the applicant is alleged to have obtained oral permission to absent himself from the section. The Appellate Authority accepted the evidence and found that there is no justification to hold that the documents are fabricated. Hence, there is no merit in the submissions in this regard. For the afore reasons we are of the view that the O.A. is devoid of merit and is liable to be dismissed.
15. Before parting with the case we are constrained to express our displeasure on the unmerited sympathy shown by the Disciplinary as well as the Appellate Authorities on the basis of repentance letter unmindful of the misconduct. In other words, the misconduct committed cannot be simply be washed away by repentance. The Hon’ble Supreme Court in Vishaka’s and Apparel Export Promotion Council cases (supra) held that when fundamental rights of a complainant are invaded the punishment should be deterrent to provide a safeguard to the complainant. Therefore, while dismissing the application we observe that the Disciplinary and the Appellate Authority ought to have considered the proven case of sexual harassment strictly in accordance with law and there is no place for sympathy unmindful of the misconduct and its repercussion.
16. In the result, the O.A. is dismissed with exemplary costs of Rs. 6,000/- payable to respondents 6 to 10 in the circumstances of the case.