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Karnataka High Court: Mandate for Reevaluation of Suspension Orders by Disciplinary Authority Following Petitioner’s Charge Memo Response

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Case Name: Dr. Sathishkumar S Hosamani v. The State of Karnataka 

Case No.: Writ Petition No. 10727 OF 2024 

Dated: May 16, 2024 

Quorum: Justice R Devdas and Justice J M Khazi 

 

FACTS OF THE CASE: 

The facts of the present case centre the petitioner, who is the Director of the Department of Public Libraries, is suing this court because he was upset that the Karnataka State Administrative Tribunal rejected his application. In that application, the petitioner had questioned the validity of the contested suspension order, which was issued on March 11, 2024 and was assigned the number EP.114.LIB.2023.  

The petitioner, serving as the Director of the Department of Public Libraries, has brought this lawsuit before the court after the Karnataka State Administrative Tribunal dismissed his application. In his application, the petitioner challenged the legitimacy of the suspension order issued on March 11, 2024. 

The petitioner, who holds the position of Director of the Department of Public Libraries, has initiated legal proceedings in this court, expressing dissatisfaction with the Karnataka State Administrative Tribunal’s decision to dismiss his application. The application in question sought to challenge the validity of a suspension order that had been issued against him. This suspension order designated was dated March 11, 2024. The petitioner contends that the suspension was unjustified and is seeking the court’s intervention to overturn the tribunal’s decision and invalidate the contested suspension order. 

 ISSUES: 

  • The issue here is whether a suspension order can be legitimately issued by the competent authority. According to the Hon’ble Supreme Court’s summary, such an order can only be made after considering all available material to determine whether it is advisable for the delinquent employee to continue performing his duties or if retaining him in office is likely to hinder or undermine the ongoing inquiry. 

 CONTENTIONS OF THE APPELLANTS: 

The learned counsel for the appellants fiercely and strongly argued that the State Government, the respondent, issued the order of suspension without even taking the petitioner’s response into consideration. Consequently, the provision outlined in sub-rule (3) Rule 10 of the Karnataka Civil Services (Classification, Control and Appeal) Rules 1957 was invoked, which states that the competent authority must review the pertinent case materials and determine whether there is prima facie evidence to support the charges made against the government employee. If the competent authority is convinced that there is prima facie evidence, it must suspend the petitioner based solely on that examination.  

It was also argued that the Hon’ble Supreme Court provided a summary of the matter, stating that the competent authority may only issue a suspension order after considering all relevant information regarding whether it would be best to let the delinquent continue to carry out his duties in the workplace or whether doing so would likely impede or frustrate the investigation. It is necessary for the responsible authority to take into account both the type of evidence that is available and the seriousness of the alleged misbehaviour.  

In addition, the petitioners contended that they should be held accountable for events that happened more than five or six years ago. Furthermore, only minor charges are being made against the petitioner; within the pertinent period, only technical inconsistencies are being claimed and brought against the petitioner.  

Acquired knowledge Senior Counsel argued that the Tribunal erred in concluding that the committee’s report could not be the only factor taken into consideration when passing the order of suspension. However, it is evident that the relevant authorities did not take the petitioner’s response into account. 

 CONTENTIONS OF THE RESPONDENTS: 

The arguments put forward by the learned counsel for the appellants were sharply and passionately rejected by the learned counsel of the respondents claimed that Rule 10(3) does not include a step where the petitioner’s response would be taken into consideration. The Learned Additional Advocate General argues that the competent authority, taking into account the material presented to it, passes the order of suspension in accordance with Rule 10(3) in the normal course of business.  

However, since the action was started as a result of a complaint submitted by a Legislative Council member, the State Government felt it appropriate to form a committee to investigate the claims made by the Honourable Member of the Legislative Council after determining that further information would be needed in relation to the member’s complaint.  

However, the Tribunal requested the original records, which were presented to the Tribunal. After reviewing the original records, which included the note sheets, the Tribunal concluded that the State Government had followed the procedure outlined in Rule 10(3) and that, as a result, the challenged order issued by the Tribunal was correct.  

The learned additional advocate general further submitted that, even with regard to paragraphs Nos. 21 and 22, which the learned Senior Counsel relying upon on behalf of the petitioners, the authority must consider all the material available and determine whether, in a particular case, it is best to permit the delinquent to continue performing his duties in the office or whether his continued presence in the office is likely to impede or frustrate the investigation. In any case, Rule 10(3) does not specify or consider a scenario in which the delinquent officer and the suspension order are contacted for a response.  

 COURT’S ANALYSIS AND JUDGMENT: 

The court observed that when comparing the provisions of Rule 10(3) of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 to Rule 11(2), which expressly states that the Delinquent Officer will be asked to respond, and which specifies the circumstances and steps in which the Disciplinary Authority must take into account the response, the Disciplinary Authority must make well-reasoned decisions based on the information provided.  

The court further held that even though the Committee that was established in this case requested a reply from the petitioner, it cannot be said that the impugned order of suspension should also stimulate the review of the petitioner’s reply because Rule 10(3) does not explicitly require the consideration of the Delinquent Officer’s reply, nor does it contemplate such a course of action. After reviewing the accusations made against the petitioner contained in the contested suspension order, it is impossible to say that the accusations are not grave.  

Finally, the court laid down that All of these issues, in any case, need to be taken into consideration later on. Furthermore, as the learned AAG correctly pointed out, the respondent Disciplinary Authority is obligated to reevaluate its order of suspension or review its order of suspension after reviewing the reply that would be caused by the petitioner. This is because the petitioner has been served with a charge memo and is now required to submit a written response.  

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Delhi HC uses ‘doctrine of harmonious construction’; Clarifies forum for appeals in government employee misconduct cases.

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CASE TITLE – Khajan Singh v. Union of India and Ors.

CASE NUMBER – W.P.(C) 15201/2023, CM APPL. 27067/2024 & W.P.(C) 6465/2024, CM APPL. 26938/2024

DATED ON – 20.05.2024

QUORUM – Justice V. Kameswar Rao & Justice Ravinder Dudeja

 

FACTS OF THE CASE

Proceedings under the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (“Rules of 1965‟, for short) were initiated against the petitioner (in both the petitions) wherein the allegations are primarily relatable to sexual harassment against the petitioner. The CLICC, which is the Inquiry Authority for Rules of 1965, had also submitted its report to the Disciplinary Authority, which sought the advice of the Union Public Service Commission (“UPSC‟, for short) as the petitioner is the Group-A Officer. The UPSC had tendered its advice and the same had been given to the petitioner for his representation. The reason this petition had been raised is to question the maintainability of the writs and appeals by the respondents, more particularly given the objection taken by stating that the remedy of appeal under Section 18 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act of 2013‟, for short) is not available to the petitioner as the action on the inquiry report submitted by the Central Level Internal Complaints Committee (“CLICC‟, for short) needs to be considered and decided as per the Rules of 1965.

 

ISSUES

Whether a government employee accused of sexual harassment can appeal the findings of the Internal Complaints Committee (ICC) to a court or tribunal under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013?

Whether The Charged Officer must follow the appeal process laid out in their service rules Central Civil Services (Classification, Control and Appeal) Rules, 1965?

 

LEGAL PROVISIONS

Section 18 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, prescribes the appeal process for someone aggrieved by the findings of the Internal Complaints Committee (ICC). It allows an appeal to a “Court or Tribunal” as per the service rules applicable to the person.

Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, prescribes the procedure for disciplinary inquiries, including appointing an Inquiry Authority.

Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, prescribes the details the process for a government employee to submit a representation against the findings of an inquiry.

 

CONTENTIONS BY THE PETITIONER

The Learned Counsel representing the Petitioner submitted that the petitions are duly maintainable before this Court as these petitions raise an important question of law as to the inter play between the provisions of Act of 2013 read with Rules of 1965 and in particular to the remedy of appeal to a Court / Tribunal as available to the petitioner under Section 18(1) of the Act of 2013 against the recommendations of the CLICC. He further states that the Act of 2013 in terms of Sections 9, 11, 13, and 18, contains several checks and balances between the rights of the complainant and the accused. In this regard, Section 18 of the Act of 2013 provides a right to appeal, since, any person aggrieved with the recommendations made by the CLICC under Section 13(2) or 13(3) of the Act of 2013 may prefer an appeal to the Court or Tribunal in accordance with the provisions of the service rules applicable or where no such service rules exist, then the person aggrieved may prefer an appeal in such manner as may be prescribed. The Learned Senior Counsel argued that Section 18 of the Act of 2013 is a safeguard provided to both the accused and the victim, who may be aggrieved by the recommendations of the CLICC, to prefer an appeal before a judicial body i.e., a Court or a Tribunal, and any attempt to designate a quasi-judicial or an administrative body to mean a Court / Tribunal will be violative of the plain and literal meaning of the Section apart from being contrary to the spirit. It was his stand that the Disciplinary Authority is neither a Court / Tribunal nor does it have the trappings of a Court or a Tribunal, and stated that the Disciplinary Authority who is also the accused person’s employer cannot be considered as an independent body having no interest whatsoever in the proceedings. He further submitted that the inquiry proceedings in the complaints filed by the complainants have been conducted under the Act of 2013, in accordance with the applicable service rules, i.e., Rules of 1965. It is his case that if the argument of the respondents is taken to its logical end that the Disciplinary Authority / MHA is the Appellate Authority to consider an appeal against the recommendation of the CLICC, this would lead to an incongruity since Section 13(4) of the Act of 2013 makes it mandatory for the Employer / MHA to act upon the recommendation of the CLICC. Therefore, the employer can never be the Appellate Authority since the employer is statutorily bound to act upon the recommendations of the CLICC. The Learned Counsel argued that on literal reading of Section 18(1) of the Act of 2013, the provision of an appeal to a Court or Tribunal is an intelligible result and has to be construed literally. This is particularly since the Rules of 1965 do not have any provision for an appeal to a Court or Tribunal or other such prescribed Appellate Authority as mentioned hereinabove. In the event, the provision of appeal under Section 18 (1) is treated to be akin to a representation under Rule 15(2), it would lead to rewriting the statute since the intention was to ensure a right of appeal in consonance of principles of natural justice.

 

CONTENTIONS BY THE RESPONDENT

The Additional Solicitor General appearing for the Union of India submitted that the misconduct relatable to sexual harassment being misconduct under the service rules/ Rules of 1965, the proceedings of the CLICC are to be considered as the proceedings for the purpose of Rule 14 of the Rules of 1965, and hence, it is the procedure which is laid down under the Rules of 1965 which needs to be followed. And stated that the UPSC had also tendered its advice to the Disciplinary Authority. Moreover, the advice of the UPSC had also been given to the petitioner to enable him to give representation to the Disciplinary Authority within 15 days. As such, the Disciplinary Authority should now be able to consider the representation made by the petitioner against the recommendation of the CLICC and the advice of the UPSC, to pass a final order in the proceedings. It is his submission that the appeal filed by the petitioner under Section 18 of the Act of 2013, against the recommendations made by the CLICC, is not available because of the applicability of the Rules of 1965, as Section 18 itself contemplates that the remedy of appeal is available in accordance with the provisions of the service rules which are Rules of 1965 in the present case. He submitted that the stand of the petitioner and as contended by the Learned Senior Counsel appearing for the petitioner that the appeal shall lie to the Court or Tribunal, which is an independent authority to mean a court outside the realm of service rules is a totally misconceived argument, when Section 18 of the Act of 2013, clearly states that an aggrieved person may prefer an appeal to the Court or a Tribunal, in accordance with the provisions of the service rules applicable to that aggrieved person. The Additional Solicitor General also brought up a previous precedent set by the same Court to support his argument, Dinesh Chandra Mishra v. India Counsel of Agriculture Research and Ors., W.P.(C) 6538/2019, decided on May 31, 2019, wherein this Court, on an identical issue, has clearly held that Section 18 of the Act of 2013, provides that the appeal has to be in accordance with the provisions of the service rules applicable to the aggrieved persons. Hence, it was categorically observed that Rules of 1965, specifically provides that the inquiry conducted by the CLICC would be treated as one held under Rule 14 of the Rules of 1965 by an Inquiring Authority appointed by the Disciplinary Authority and the same shall be acted upon in terms of Rule 14 of the Rules 1965. It further held that the appeal is provided in cases where the recommendation of the committee itself is final, and they are ipso facto binding and enforceable under Section 13(4) of the Act of 2013, which is not a case herein. It also held that the report of the CLICC in respect of an employee governed by the Rules of 1965, is not per se actionable and would be considered by the Disciplinary Authority. The Learned Counsel representing the CRPF also made her arguments along the same lines, where she stated that the allegations against the petitioner are of sexual harassment and as such, the same need to proceed under the Rules of 1965. She stated that in the present case, CLICC is the Inquiring Authority. On submission of report by the CLICC, further action has to be taken under Rule 15 of the Rules of 1965.

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble High Court of Delhi stated that it was necessary to highlight the submission of of the petitioner that a remedy of an appeal before a Court or Tribunal as per the service rules, stipulated under Section 18 of the Act of 2013, had been provided with an intention to provide remedy outside the administrative process to an independent authority, who given the nature of misconduct, shall have to consider the issue fairly. The Hon’ble High Court also went into deeper consideration into this point, when a remedy to challenge is provided under the service rules (representation), reading a further remedy of the Court / Tribunal, shall have the effect of providing a remedy of challenging the findings outside the realm of the administrative process to a Court / Tribunal, which shall make Rule 15 of the Rules 1965, framed under the proviso to Article 309, nugatory. In fact, there would be a conflict between Rule 15 of the Rules of 1965 and Section 18 of the Act of 2013, providing two remedies against the findings of the CLICC. So, it follows that both the provisions must be construed harmoniously, so that one provision does not defeat the other provision. The Court stated that when meaningfully read, it has to be construed that in an eventuality that the Committee / CLICC returns the findings against a government servant, the representation against those findings made by a Charged Officer as per the procedure laid down under Rule 15 of Rules of 1965 thereof, shall satisfy the remedy akin to appeal under Section 18 of the Act of 2013, which is applicable only where the rules concerned specifically prescribe Court or Tribunal as a remedy for filing appeal against the finding / recommendations made by the committee in a given case or where there are no rules, the appeal may be preferred in such manner as may be prescribed. In other words, the rules being in existence providing the remedy to challenge the findings / recommendations of the CLICC in the form of representation to the Disciplinary Authority, by harmoniously construing Section 18 of the Act of 2013, which specifically provides that an aggrieved person may prefer an appeal before a Court or Tribunal in accordance with the provisions of the Service Rules, it was held that in cases like the one at hand, where the procedure of representation against the findings is provided under the Rules of 1965, the remedy to challenge the findings shall surely lie before the Disciplinary Authority as a higher and independent authority and not as a remedy of appeal under Section 18 of the Act of 2013. The Court then reached it’s verdict, stating that the present petition cannot be entertained and that the Disciplinary Authority would be within its right to act on the report of the CLICC and proceed in accordance with law, and that they should, after receiving the representation of the petitioner, shall by considering the advice of the UPSC as well as the recommendations / findings of the CLICC, act in accordance with the procedure as laid down in the Rules of 1965.

 

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The Delhi High Court ruled that a Retired Public Officer cannot occupy the position of Inquiry Officer under the Export Inspection Agency Employees Rules, 1978

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Case title: Parveen Kumar Vs Export Inspection Council & Ors.

Case no.: W.P. (C) 3940/2017 & CM APPL.14022/2021

Decision on: March 6th, 2024

Quoram: Justice Tushar Rao Gedela

Facts of the case

The Petitioner, Parveen Kumar was working as a Technical Officer in Export Inspection Agency under the respondent office. The Petitioner, in the course of his employment exposed a recruitment scam in his department in which sixteen Assistant Director was recruited fraudulently. In 2013, the Petitioner was directed to proceed to sub-office (SO), Kanpur to hold charge but he requested to not depute him on tour to SO Kanpur. The same was rejected by the respondents and the Petitioner stood relieved from EIA Delhi Head Office. Further, he filed the tour programme which was approved by the respondent.

In 2014, the Respondent again directed the Petitioner to be deputed on tour to SO, Kanpur till further orders. He immediately filed a tour programme but the same was rejected for not having a termination date of tour. The respondents repeatedly intimated the petitioner to rectify the improper tour programme but the petitioner was unable to do it and requested the respondents to co-operate and help him in the same.  However, the respondents issued a charge memorandum against the Petitioner alleging disobedience of the order.

A disciplinary enquiry was initiated against the Petitioner in which he made a representation against the illegal appointment of an ineligible person, being a retired public servant, as Inquiry Officer in contravention of Rule 11 of the EIA Rules. But, the representation was rejected by the Respondent. The Disciplinary Authority passed an order of penalty of reduction in rank from Technical Officer to Lower Post of Junior Scientific Assistant against the petitioner. Consequently, the Petitioner preferred a statutory appeal which was dismissed by the Appellate Authority. Aggrieved by the same, the Petitioner filed the present Writ Petition, challenging the impugned orders of the Disciplinary Authority and the Appellate Authority.

Contentions of the Petitioner

Praveen Kumar appearing in person challenged the Disciplinary Authority (DA) primarily on two grounds which violated the Principles of Natural Justice and Rules and Regulations of the Export Inspection Agency (EIA). He submitted that the appointment of the Inquiry Officer was invalid as it violated Rule 11 (2) of the respondent (EIA Rules). Rule 11(2) prescribes the Inquiry Officer to be a “Public Servant” but submitted that the Inquiry Officer in the present case was a retired employee and was not in active duty. As such, retired employees cannot be called a Public Servant. Further, the petitioner contended that he was not granted any opportunity of hearing by the Disciplinary Authority before passing the impugned order, because according to Rule 11 (4) of the EIA Rules, after the written Statement of Defence is submitted, if the Charged Officer seeks hearing, the Disciplinary Authority must grant such hearing before passing the final order. However, he was not granted any Personal Hearing in spite of his requisition, which according to the petitioner not only violated the statutory rules but also the well settled Principles of Natural Justice.

Contentions of the Respondents

The Counsel, on the contrary submitted that even the retired officer can be construed as a public servant and as such, the Inquiry Officer was appointed is in accordance with the EIA Rules. The Inquiry Officer was paid remuneration for the purposes of conducting inquiry against the Petitioner who is a public servant and the disciplinary proceedings itself would fall within the public duty of the Respondent. Further, with respect to the violation of Rule 11(4) the Counsel submitted that there was no defence raised by the Petitioner in the defence statement except making allegations except against the officers and authorities. He opined that if personal hearing was granted, the Petitioner would have simply continued the tirade of baseless allegations and thus, the denial of the same cannot be termed as a violation of the said rule.

Court’s Analysis and Judgement

The Court considering the arguments of the parties notes that the issue in present petition revolves around the interpretation of the provisions of Rule 11(2) and Rule 11 (4) of the EIA Rules, 1978.

The Bench, on perusal of Rule 11(2) of the EIA Rules, asserted two key aspects. According to the rule, firstly, the Disciplinary Authority may itself inquire into the truth of any imputation of misconduct against agency employee; and secondly, that it may appoint under that sub rule ‘a public servant’ to inquire into such truth thereof. The court adopting a plain and simple reading of the provision emphasized that the term such person / Inquiry Officer must be a servant of the public and not a person who ‘was’ a servant of the public and thereby rejected the argument of the respondent. The Inquiry Officer, who was a retired officer of the respondent, did not fulfil the criteria of a ‘public servant’ and held such appointment to be violative of Rule 11 (2) of the EIA Rules. Thus, it ruled that a public servant occupying the position of Inquiry Officer cannot be a retired person.

The Court further adjudicated on the issue of violation of the Rule 11(4) of the EIA Rules wherein the Charged Officer was permitted to seek personal hearing before the DA. The said Rule prescribed the e procedure as to how the DA would proceed after the conclusion of the Inquiry Officer’s report. The Court referring to the rule asserted that the DA was mandated to afford the Charged Officer (CO) an opportunity to tender a written Statement of Defence against the Articles of Charge and the proposed penalty. Moreover, even in accordance with the principles of natural justice the DA ought to afford an opportunity of personal hearing to the CO, if he desires. It highlighted that the opportunity of personal hearing is not a mere formality. It is intrinsic and intertwined not only with the disciplinary proceedings but also with the principles of natural justice. But however, in the instant case it was observed that even on the receipt of requisition no such an opportunity was afforded to the petitioner by the respondent, thus violating Rule 11 (4) of the EIA Rules, 1978.

The Delhi High Court in view of the above violations remitted the matter back to the Disciplinary Authority for adjudication.

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