#governmentemployee Archives

23 May

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

Blog #CivilServices, #Delhi HC, #DisciplinaryAuthority, #governmentemployee, #officer, #Sexualharrasment, #UPSC, #WomenEmpowerment, #womenrights, #workplace

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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Judgement Reviewed by – Gnaneswarran Beemarao

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16 May

Supreme Court Quashes Criminal Proceedings in Benami Land Transactions and Establishes Legal Precedents for Government Employees Engaging in Similar Transactions

Prime Legal

Blog #benami, #BenamiTransactionAct, #governmentemployee, #implications, #land, #propert, #SupremeCourt

Case Name: C Subbiah @ Kadambur jayaraj & Ors v. The Superintendent of Police & Ors

Case No.: SLP (Criminal) No(s). 8990 of 2019

Dated: May 15, 2024

Quorum: Justice B R Gavai and Justice Sandeep Mehta

FACTS OF THE CASE:

The complainant filed a complaint at the Court of Learned Judicial Magistrate No. II, Kovilpatti, claiming among other things that he was a graduate of the MD programme with an M.Sc. On October 8, 2007, he was hired as a government instructor. The claimant had been making his living from the real estate sector for the previous sixteen years prior to being assigned as a Government teacher.

The complainant making the complaint was acquainted with Kannabiran, also known as “A-3,” who held a managerial position at the Kovilpatti branch of the State Bank of India (SBI). The complainant met A. Vijaya (hence referred to as “A-2”) and Subbiah @ Kadambur Jeyaraj (hereinafter referred to as “A1”) while working in the real estate industry.

The complaint was introduced to Chandrasekar (henceforth referred to as “A-4”), his son Pandiyaraj (henceforth referred to as “A-6”), his wife S. Pandiyammal (henceforth referred to as “A-5”), and his brother—all of whom were involved in the real estate industry—through A-1 and A-2.

Additionally, the plaintiff was duped into thinking that smaller plots would be acquired from the larger pieces of land so be cut up and sold to various people, which would regularly demand the seller’s personal presence, and given that the complainant was a teacher, hence he would experience difficulties if the land lots were to be put on file under his name.

As the appellants in this case, A 1–12 filed CRL.O.P.(MD) No. 3846 of 2013 to challenge the FIR and the charge sheet before the Madras High Court, Madurai Bench. The appeal by special leave is being challenged in this appeal, and the learned single judge of the Madras High Court dismissed the petition that the appellants had filed in their ruling of April 23, 2018.

LEGAL PROVISIONS:

Section 420 IPC- Cheating and dishonestly inducing delivery of property.— If someone deceives someone by cheating and then dishonestly persuades them to give up property to someone else, create, alter, or destroy a valuable security in whole or in part, or create something signed or sealed that has the potential to be turned into a valuable security, they will be subject to a fine and up to seven years of imprisonment of a similar kind.
Section 120(B) of IPC- Any individual involved in a criminal conspiracy that is not related to a criminal conspiracy to commit an act listed above faces a maximum sentence of six months in either type of jail, a fine, or both.

CONTENTIONS OF THE APPELLANTS:

The learned counsel for the appellants fiercely and strongly argued that the charges listed in the charge sheet and the formal complaint are not sufficient to establish the offences claimed, even if they are accepted as genuine on the face of the record. A continuation of the proceedings in accordance with the charge sheet filed against the accused appellants would amount to a flagrant abuse of the legal process, he argued, given the acknowledged facts as stated in the complaint, which indicates that any disagreement between the parties is solely civil in nature.

The charge sheet makes it very evident that although the complainant received some of the selling proceeds from the land deals, he did not receive the full amount that was due to him. He further argued that since the complainant was a teacher employed by the government and was not permitted to engage in real estate transactions, he made the investments through the accused appellants in this case at his own risk.

He further said that when the profit-sharing component of the land deals failed to satisfy the complainant, he felt that the criminal legal system had been abused in order to bring a baseless case against the accused appellants.

The argument put forth by the knowledgeable senior attorney was that there is absolutely nothing in the case file that indicates the accused appellants intended to deceive the complainant at the outset of the transactions.

Furthermore, the accused appellants would not be found guilty of a criminal breach of trust because the complainant’s accusation concerns a disproportionate sharing of profits from land dealings that he entered into with their knowledge.

CONTENTIONS OF THE RESPONDENTS:

The arguments put forward by the learned counsel for the appellants were sharply and passionately rejected by the learned counsel for the respondent complaint as well as the learned Standing Counsel representing the State.

It was argued that the accused appellants deceitfully persuaded the complainant to make large investments in real estate transactions by gaining his trust through the use of phrases like “honey quoted.” The accused repeatedly assured the complainant that he would receive his rightful portion of the profits or the plots from the lands, as the case may be, which would be bought in the accused’s name because the complainant was not permitted to engage in such transactions as a government teacher.

The complainant committed large sums of money in land agreements, putting total faith in the accused appellants’ guarantees, after falling for their enticements. Nevertheless, the accused appellants broke their word and conned the complainant by not providing him with the necessary number of plots that would have been in line with his investment.

According to their argument, the fact that the complainant has already used a civil remedy for the same complaints does not automatically bar him from using the criminal court’s jurisdiction to hold the accused appellants accountable for their fraudulent acts. This is because the allegations made in the complaint are equivalent to both criminal and civil offences, allowing for the continuation of parallel legal proceedings.

COURT’S ANALYSIS AND JUDGMENT:

The court said that it was evident from the complaint that none of the allegations therein could support a finding that the accused appellants’ goal was to deceive the complainant right from the beginning of the transactions. Without a doubt, the accused appellants gave the complainant some plots and a portion of the profits from the land deals, but there is a disagreement over how much profit was made and whether the complainant’s share of the profits was fully satisfied in relation to his investments.

The court held that, at most, the complainant may use these accusations as justification to file a civil lawsuit against the accused appellants. However, Section 4 of the Benami Act prohibits such a remedy, as was previously mentioned.

With regard to the accused appellants, the court was firmly of the opinion that the accepted allegations included in the complaint and charge sheet did not establish the requisite elements of the offences punishable under Section 406 and Section 420 IPC. There is no denying that by abusing the criminal justice system, a civil issue has been given a criminal prosecution colour by means of accusations of fraud and criminal breach of confidence.

At the risk of repetition, it should be emphasised once more that the complainant was not permitted to sue the accused appellants for the identical set of facts and claims that form the basis of the criminal proceedings due to the explicit bar stated in Section 4 of the Benami Act.

Judgment reviewed by Riddhi S Bhora.

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