On 10^th September 2021, in the case of PKT Vs. State of Himachal Pradesh and Ors., Himachal Pradesh High Court held that in a proceeding on allegations of sexual harassment, the Internal Committee (“IC”) had no authority to issue a memorandum to proceed with inquiry without permission of the Disciplinary Authority (under Central Civil Services (Classification, Control and Appeal) Rules 1965). The said memo issued was also in contravention of the Office Memorandum dated 16.07.2015 (“Office Memorandum”) and Circular dated 26.06.2019(“Circular”). The Office Memorandum was issued by Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, and outlined steps for conducting inquiry in complaints of sexual harassment. The Circular was issued by the Department of Personnel Government of Himachal Pradesh.

Facts: A complaint of sexual harassment was filed against the Additional Superintendent of Police (“Petitioner”) before the IC of the Police Department, Shimla (“Respondent”). IC issued a memo to the Petitioner and proceedings were initiated. IC depended on the following for issuing the memo:

1. Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules 1965 (“the CCS(CCA) Rules 1965”).
2. Standard Operating Procedure No. 580 of 2017 (“SOP”) issued by the Respondent (please note: this was the SOP created by the police department to conduct inquiry into complaints of sexual harassment internally.)

Issue:

Whether the Internal Committee could issue a Memorandum against the Petitioner initiating enquiry against him without the approval of the Disciplinary Authority?

Contentions:

The Petitioner’s main contentions were that:

1. The Memo issued by the IC was wrong and contrary to the provisions of CCS (CCA) Rules,1965. He contended that the Office Memorandum and the Circular were not referred to as only a Disciplinary Authority could issue such memos.
2. The proceeding initiated by the Internal Committee pursuant to issuance of the memo was violative of the procedure prescribed for initiation of inquiry in such cases. Moreover, a fair opportunity of defence was denied to the Petitioner.

The Respondents averred that that inquiry was being conducted as per Standard Operating Procedure No. 580 of 2017 (SOP), CCS(CA) Rules and the Act of 2013. Moreover, the inquiry was being conducted in accordance with the Office Memorandum and circular dated 26.06.2019.

Decision

The court went through the provisions laid down in the CCS(CA) Rules, the POSH Act, the Office Memorandum, the Circular and the SOP. The court held that a combined reading of Office Memorandum with the CCS (CCA) Rules stated that keeping in view the proviso to Rule 14(2) of CCS(CCA) Rules, the IC will be involved in two stages. First, is at the stage of investigation and the second stage is where the Internal Complaints Committee acts as an inquiring authority appointed by the Disciplinary Authority and conducts the inquiry as far as practicable as per the said Rules.

First Stage of Involvement of IC: Fact finding inquiry/investigation

At this stage, the IC must conduct investigation to ascertain truth of allegations laid out in the complaint. The same must be accomplished by collecting documents, recording statements of witnesses, if any, including the complainant.

The report of the above-mentioned investigation is submitted by IC before the Disciplinary Authority. The Disciplinary Authority then examines the report to ascertain whether a formal charge sheet needs to be issued to the respondent-official or not. As per Rule 14(3) of the CCS(CCA) Rules, charge sheet is to be drawn by or on behalf of the disciplinary authority. In case charge sheet is issued to the officer, then he is to be given an opportunity to reply to the charge sheet. As per Rule 14(5) of the CCS(CCA) Rules, a decision to conduct the inquiry has to be taken after consideration of reply of the charged officer.

Second Stage of involvement of IC: Formal Inquiry

In case the Respondent denies the charges and his reply is not considered convincing by the Disciplinary Authority, then charge sheet is issued to him under CCS(CCA) Rules. The charge sheet along with his reply is then sent to the IC for conducting formal inquiry into the matter

In the present case, the IC conducted a fact finding inquiry and found substance in the allegations levelled against the petitioner. Consequently, the IC decided to proceed with the formal inquiry. The decision to hold a formal inquiry against the petitioner was taken by the IC on its own without forwarding the investigation report to the Disciplinary Authority. Thus, without the assent of the Disciplinary Authority and in the absence of a charge sheet, the IC proceeded with the investigation and issued a memorandum against the Respondent under Rule 14 of the CCS(CCA) Rules.

The High Court referred to the Apex court’s judgment in Nisha Priya Bhatia Vs. Union of India & Anr, (2020) 13 SCC 56, wherein following was observed in respect of fact-finding inquiry by the IC followed by conduct of regular inquiry:

“The inquiry under the 2013 Act is a separate inquiry of a fact-finding nature. Post the conduct of a fact-finding inquiry under the 2013 Act, the matter goes before the department for a departmental inquiry under the relevant departmental rules [CCS (CCA) Rules in the present case] and accordingly, action follows. The said departmental inquiry is in the nature of an in-house mechanism wherein the participants are restricted and concerns of locus are strict and precise.

….The two inquiries cannot be mixed up with each other and similar procedural standards cannot be prescribed for both.”

Hence, the Court held that, in case of any differences in the procedure laid down, the SOP cannot override the CCS(CCA) Rules, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act and Rules, 2013 (“POSH Law”) or the Office Memorandum. The court further held that a conjoined reading of the POSH Law, the CCS(CCA) Rules, 1965, the Office Memorandum, the Circular and the SOP leads to only one conclusion that the IC has no authority to issue the impugned memorandum to the Petitioner under Rule 14 CCS(CCA) Rules as it does not have the power to proceed with formal/regular inquiry on its own. It is under the powers of the Disciplinary Authority to examine the fact-finding report of the IC to decide whether to issue charge sheet to the Petitioner or not and only the Disciplinary Authority which can issue the charge sheet to the Petitioner.

Therefore, the Court set aside the Memo issued to the Petitioner by the IC and left it open to the Respondents to proceed against the Petitioner in accordance with the law.

– Shreya Kanaujia, Legal Associate & Lawyer