2025 (9) TMI 146 - HC - Customs

Complaint held timely; ICC composition tainted; integrate POSH with CCA/CCS rules; ensure hearings; perjury allegation dismissed

S. Ravi Selvan Versus Central Board of Indirect Taxes & Customs, Internal Complaints Committee Headed by Ms. Prachi Saroop, The Principal Chief Commissioner Central Goods Services Tax & Central Excise, XYZ (in accordance with para 1 of the impugned judgment), The Chief Commissioner Chennai Customs Zone Custom House And Union of India, Internal Complaints Committee, The Chief Commissioner of Customs Versus Mr. S. Ravi Selvan, IRS, The Principal Commissioner of GST and Central Excise, The Registrar

HC held the complaint was not time-barred, finding allegations began December 2020 and continued into 2022, so limitation defence rejected and inquiry ... Sexual harrasment at workplace - complaint has been filed on 24.05.2022 in relation to alleged events that had transpired in 2020 and 2021 - selection of officers to constitute the ICC - whether the lodging of the complaint is within the time stipulated under Section 9 of the Prevention of Sexual Harassment of Women at Workplace (Protection, Prohibition and Redressal) Act, 2013 (in short ‘Act’/‘POSH Act’) and that in any event proceedings were very nascent? Time limitation - HELD THAT:- The tenor of the allegations, prima facie, indicate that the allegations commence from December 2020 and continued even thereafter till february 2022. The defence of limitation is not liable to be accepted and the complaint must be inquired on the merits thereof. To be noted, that both in the cases of Dr.P.Govindaraju and Vivek Tyaji [2021 (3) TMI 1480 - PUNJAB AND HARYANA HIGH COURT], the last of the incidents had been identified by date, whereas in the present case, R4 has alleged that the incidents were periodically recurring and continuing. Selection of officers to constitute the ICC - HELD THAT:- The constitution of the ICC does not inspire confidence. Learned Additional Solicitor General accedes to the position that Ms. Manasa Gangotri Kata ought not to have featured in the ICC as a member. That apart, Ms. M. Sheela, who was appointed as an external member of the ICC was, admittedly, and as confirmed by Union, a panel counsel at the time of her inclusion in the ICC. Her inclusion in the panel is also therefore inappropriate - That apart, there is a larger reason why we believe that the constitution of the ICC is tainted. In the course of the hearing, it is given to understand that the inquiry of the ICC had been completed even prior to the disposal of the Writ Petition by the learned single Judge. Procedure to be followed for filing complaint under POSH - HELD THAT:- In Medha Kotwal Lele [2012 (10) TMI 1269 - SUPREME COURT] the Court reiterated under the caption, ‘Preventive steps’, that the Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should specifically include Rules/Regulations prohibiting sexual harassment and providing for appropriate penalties against the offender. As regards private employers, steps should be taken to include such prohibitions and mechanisms to redress the same in the Standing Orders under the Industrial Employment (Standing Orders) Act, 1946. Disciplinary action, once misconduct was proved as defined under the relevant service Rules, should be initiated by the employer in accordance with the Rules - Coming to the question of complaint mechanism, the Court clarified that whether or not the conduct complained of constituted an offence under law or a breach of service rules, an appropriate complaint mechanism should be created within the organization for redressal of complaints by a victim providing specifically for time bound disposals. Hence, there is a need to integrate the procedure set out under the POSH Act and Rules with that stipulated under the CCA(CCA) Rules as both are equally applicable and relevant in addressing the question of disciplinary proceedings as against an Central Government employee. In addition, the former, that is, the POSH Act and Rules, constitute a special enactment that takes note of a very unique set of circumstances that compels a different approach, one that has to integrate a sense of urgency, sensitivity and natural justice with the procedure already set out under the CCA(CCS) Rules. Once the Report is furnished to the disciplinary authority, that authority shall take a decision in accordance with the CCA(CCS) Rules and applicable OMs as to whether proceedings are to be taken further, and proceed accordingly. We note that the procedure contemplated, and that we have outlined above, provides for the furnishing of complete materials relating to the complaint and opportunity of hearing at three stages to the charged officer, firstly, on issuance of a charge sheet, secondly, before the Complaints Committee in the discharge of its functions as inquiry committee and thirdly, before the Disciplinary authority prior to completion of the proceedings. The element of natural justice is hence satisfied in full. As far as the application filed by the Appellant alleging perjury on the part of the R4 in making a false averment in her affidavit, we do not agree. The averment related to a technical matter in regard to the IT infrastructure for receipt and processing of SVLDRS Declarations. The statement of R4 only makes a general averment in that regard and does not, as is made out to be, convey any specific information that may be regarded as being a falsehood. This Miscellaneous Petition is hence dismissed. 1. ISSUES PRESENTED AND CONSIDERED 1.1 Whether the complaint under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) was time-barred under Section 9, or constituted a series of incidents permitting extension of the three-month limitation. 1.2 Whether the constitution and conduct of the Internal Complaints Committee (ICC) offended principles of impartiality/natural justice such that its inquiry and report must be set aside. 1.3 The proper procedural relationship and sequencing between (a) the fact-finding inquiry under the POSH Act/ICC and (b) departmental inquiry under the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (CCS(CCA) Rules) - including rights of the charged officer at various stages and the consequences of preliminary findings. 1.4 Whether an SVLDRS (Sabka Vishwas Legacy Dispute Resolution Scheme, 2019) declaration and consequent discharge certificate can be obliterated under Section 129(2)(c) of the Scheme where a material particular (category of declaration) is found to be false, and what follow-on consequences flow (including forfeiture of amounts and revival of show-cause proceedings). 1.5 Whether suspension ordered in the impugned administrative order was sustainable in the circumstances and what interim service position should obtain pending completion of the POSH/disciplinary processes. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Limitation under Section 9 POSH Act Legal framework: Section 9(1) POSH Act requires the aggrieved person to make a complaint within three months of the incident, or in case of a series of incidents, within three months of the last incident; the Rules and OMs permit extension where circumstances prevented timely filing. Precedent treatment: The Court considered earlier decisions holding the limitation mandatory where discrete last incident dates were identified, but distinguished those authorities on facts. Interpretation and reasoning: The complaint alleged recurring, periodic harassment commencing in 2020 and continuing into 2021-2022, including continuing disparaging conduct and a charge-memo incident in February 2022. The Court found the complaint to describe a series of continuing incidents such that the three-month period should be measured from the last incident alleged; prima facie limitation defence therefore not sustainable on the material before the Court. Ratio vs. Obiter: Ratio - where harassment is alleged as a series of recurring incidents with continuing effect, Section 9(1) limitation is measured from the last incident and will not bar inquiry merely because some earlier incidents fall outside three months; prior cases with fixed last-incident dates are distinguishable. Conclusion: The limitation defence rejected on the facts; the complaint proceedable to inquiry. Issue 2 - Constitution, impartiality and timing of ICC inquiry Legal framework: POSH Act/Rules prescribe composition and impartiality of ICC; DoPT/Ministry OMs and guidance require avoidance of bias and specify that when members are alleged to be biased, inquiry should be stayed until disciplinary authority rules; CCS(CCA) Rules govern departmental inquiry procedure. Precedent treatment: The Court applied guiding principles from Medha Kotwal Lele and subsequent authorities emphasising preventive steps, time-bound, sensitive handling and integration with departmental rules. Nisha Priya Bhatia and related decisions were relied upon for the need for coordinated but distinct processes. Interpretation and reasoning: The Court identified multiple defects: inclusion of members with connection to the subject matter (panel counsel/external member on roster), admitted impropriety of one member's inclusion, the fact that an ICC report was completed and issued surreptitiously before disclosure to the Writ Court and despite undertakings - conduct described as contumacious. The dual role of ICC (fact-finding and potential inquiring authority under Rule 14(2) CCS(CCA) Rules) requires strict impartiality; haste and non-disclosure vitiate confidence in the process. Ratio vs. Obiter: Ratio - where ICC composition and conduct demonstrate real likelihood of bias or procedural impropriety (including premature completion and non-disclosure of report), the inquiry and report must be set aside and the complaint re-referred for fresh constitution and inquiry; the ICC must be constituted in line with statutory prescriptions and OMs. Conclusion: The existing ICC report eschewed; complaint restored for fresh disposal; directions issued for reconstitution of ICC de novo (excluding previous members), time-table for hearings and report, and support (e.g., DOT assistance for call-record verification). Issue 3 - Procedure: interplay between POSH fact-finding inquiry and CCS(CCA) departmental inquiry Legal framework: POSH Act/2013 Rules govern complaint handling and fact-finding; Proviso to Rule 14(2) CCS(CCA) deems Complaints Committee as inquiring authority for Rule 14 purposes and prescribes that, as far as practicable, procedural rules be followed; DoPT OMs (including 16.07.2015 and 04.11.2022) set out a two-stage approach - (C) fact-finding by ICC and (D) departmental inquiry under CCS(CCA) Rules. Precedent treatment: The Court relied on Medha Kotwal Lele and Nisha Priya Bhatia to hold that the two inquiries are distinct but coordinated; departmental OMs supplement but do not derogate from the POSH Act and the CCS(CCA) Rules. Interpretation and reasoning: The Court emphasised that the preliminary fact-finding is to determine whether prima facie substance exists to warrant a charge sheet; the disciplinary authority thereafter decides whether to frame charges under Rule 14(3) and must furnish articles of charge and the materials to the charged officer, who has statutory rights to reply and be heard under Rule 14. The ICC's preliminary conclusions do not bind the disciplinary/inquiry authority; where the same individuals participate at both stages, they must approach the matter afresh and eliminate bias. Ratio vs. Obiter: Ratio - POSH fact-finding and CCS(CCA) departmental inquiry are distinct stages; natural justice demands that the charged officer be afforded the material and opportunities prescribed under CCS(CCA) Rules at the charge-sheet/inquiry stages; preliminary ICC findings do not foreclose re-hearing or departmental procedural safeguards. Conclusion: The Court directed adherence to the two-stage process, preservation of natural justice (three opportunities/hearing points), discretion of the new ICC on recording charged officer's statement, and that prior witness statements may be used or witnesses re-examined at ICC's discretion. Issue 4 - SVLDRS declaration: false material particular and effect under Section 129(2)(c) Legal framework: SVLDRS Scheme Sections 125-130, and Board Circulars/Circular-guidance clarifying eligibility, consequences of false declaration and treatment of voluntary disclosure category; Section 129(2)(c) provides that in voluntary disclosure cases, if any material particular is subsequently found to be false within one year of discharge certificate, it shall be presumed as if declaration was never made. Precedent treatment: Court examined contemporaneous circulars and the Scheme text; a co-ordinate Bench decision on the same SVLDRS declaration was relied upon and extracted. Interpretation and reasoning: The declaration incorrectly selected the category 'voluntary disclosure' despite ongoing investigations (2014 and 2019). That misclassification was a material falsehood. Section 129(2)(c) was held to be engaged: the discharge certificate issued in July 2020 is therefore presumed void with the effect that the declaration is treated as never filed. All subsequent processes (Form 3, receipt of payment, Form 4 discharge certificate) fall with that presumption. Forfeiture follows because Section 130(1)(b) bars refund of amounts paid under the Scheme. Ratio vs. Obiter: Ratio - an SVLDRS declaration that contains a false material particular as to eligibility/category triggers Section 129(2)(c) within the one-year window and results in obliteration of the declaration and its consequences, permitting revival of show-cause proceedings; payment under the Scheme is forfeited if declaration is obliterated under that clause. Conclusion: The Court held the declaration vitiated, reversed the Writ Court order on that point, and directed adjudication on the show-cause notice to be proceeded with by a different Commissionerate within three months, observing that administrative action had already been taken against officers for negligent processing. Issue 5 - Suspension and interim service position Legal framework: CCS(CCA) Rules including Rule 10 and amended Rule 10(7) limiting suspension period where no charge-sheet issued; principles governing suspension pending disciplinary process and jurisdiction of CAT. Precedent treatment: The Tribunal's order setting aside suspension was noted; parties' cited authorities on suspension periods and procedure were considered though the Court found no need to analyse all precedents in detail given its directions on the ICC inquiry. Interpretation and reasoning: The impugned suspension order was silent on reasons. Given the directions to reconstitute ICC and complete inquiry in fixed timelines, and the absence of formal departmental proceedings to vary service terms, the Court deemed it appropriate to maintain status quo on service without further immediate orders altering the appellant's station or conditions. Ratio vs. Obiter: Ratio - absent proper articulation of reasons and in light of pending re-constituted ICC inquiry and timelines, no change in service status is warranted; status quo to be maintained until completion of directed processes. Conclusion: Status quo on service maintained pending completion of the ICC inquiry and any departmental action; Tribunal's interlocutory orders otherwise need not be further addressed at this stage.