TaxTMI 
TaxTMI 
2019 (8) TMI 1933
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....s the same are arbitrary, without any jurisdiction and violative of the provisions of Sexual Harassment of Women at Workplace Prevention, Prohibition and Redressal) Act of 2013, Art. 14 and Art. 21 of the Constitution of India; b. issue a writ, order or direction in the nature of certiorari quashing the proceedings of ICC the Respondent number 2 as held by it under the Provisions of the Act of 2013. c. issue a writ, order or direction in the nature of certiorari quashing the Charge sheet dated 23.02.2017 (Annexure-P-7) issued by the Respondent No. 1 on the recommendation of the Respondent No. 2; d. issue a writ, order or direction in the nature of certiorari quashing the report dated 9.3.2018 (Annexure-P-12) of the ICC, the 2nd Respondent herein along with all the proceedings of the Respondents leading thereto; e. issue a writ, order or direction in the nature of certiorari quashing the letter of e Hon'ble Delhi High Court dated 15.05.2018 (Annexure-P-11) issued by Respondent No. 1; and f. pass any other writ, order or direction as this Hon'ble Court deems fit to grant in the interest of justice." 2. Brief facts necessary for deciding....
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....article of charges and statement of imputations. The petitioner submitted written statement on 11.03.2017. The Full Court on 06.07.2017 considered the written statement of defence dated 11.03.2017 of petitioner and resolved to hold the inquiry. The Full Court resolved for constituting a Committee in terms of Section 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as "Act, 2013") chaired by Hon'ble Ms. Justice Hima Kohli, who was appointed as the Inquiring Authority. 2.4 The inquiry before the Inquiring Committee proceeded and Report dated 09.03.2018 has been submitted by the Internal Complaints Committee. The Inquiry Report submitted by the Committee was placed before the Full Court in its meeting held on 25.04.2018 which resolved to forward the Inquiry Report to the petitioner and to ask him to submit his written submissions. Full Court in its meeting dated 01.08.2018 also resolved to supply certified copies of Full Court Meeting Minutes dated 13.07.2016, 19.07.2016 and 16.11.2016 to the petitioner. High Court also resolved that since the Preliminary Inquiry Report dated 05.11.2016 has not been relied u....
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....was served on the petitioner by letter dated 16.05.2018, where petitioner was asked to submit his written representation or statement within one month, which has not yet been done. It is submitted that in view of the fact that the petitioner has filed this petition in this Court and matter being pending due to deference to this Hon'ble Court, no further steps have been taken in the inquiry. It is submitted that the Report dated 05.11.2016 was a Preliminary Report submitted by the Committee giving opinion that the disciplinary inquiry be held, the said report being a Preliminary Inquiry Report, it was not necessary to serve such report to the petitioner. The Inquiry Report conducted as per Section 11 of the Act, 2013 and as per Section 13, the copy of the report has been duly served on the petitioner. Further, the Preliminary Inquiry Report dated 05.11.2016 was not taken into consideration for framing charges against the petitioner and hence the High Court did not give a copy of the said report to the petitioner. 6. We have heard the learned counsel for the parties and have perused the records. 7. At very outset, we indicated to the learned counsel for the petitioner that the ....
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....itution of India refers to two distinct powers. The first is power of appointment, posting and promotion of District Judges and second is power of control over Judicial Officers of the State. The word "control" occurring in Article 235 means not only the general superintendence of the working of the Courts but includes the disciplinary control of the judicial officers, i.e., the district judges and judges subordinate to him. The word "control" used in Article 235 has been held by this court to be disciplinary control. A Constitution Bench of this Court in State of West Bengal and Another Vs. Nripendra Nath Bagchi, AIR 1966 SC 447 had occasion to consider the nature of the control vested in the High Court in Article 235 of the Constitution over district judges. In paragraph No. 13 following was held:- "15. We do not accept this construction. The word "control" is not defined in the Constitution at all. In Part XIV which deals with Services under the Union and the States the words "disciplinary control" or "disciplinary jurisdiction" have not at all been used. It is not to be thought that disciplinary jurisdiction of services is not contemplated. In the context the word "con....
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....) to that clause. The High Court alone could have held the enquiry in this case. To hold otherwise will be to reverse the policy which has moved determinedly in this direction." 11. To the same effect is another Three Judge Bench judgment of this Court is Baradakanta Mishra Vs. High Court of Orissa and Another, (1976) 3 SCC 327 where in paragraph No. 20, following was laid down:- "20. The scope of Article 235 has been examined by this Court in several decisions. The important decisions are State of West Bengal v. Nripendra Nath Bagchi, AIR 1966 SC 447; High Court of Calcutta v. Amal Kumar Roy, AIR 1962 SC 1704; High Court of Punjab and Haryana v. State of Haryana (In the matter of N.S. Rao), (1975) 1 SCC 843. The effect of the decisions is this. The word "control" as used in Article 235 includes disciplinary control over District Judges and judges inferior to the post of District Judge. This control is vested in the High Court to effectuate the purpose of securing independence of the subordinate judiciary and unless it included disciplinary control as well the very object would be frustrated. The word "control" is accompanied by the word "vest" which shows that the High....
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....nt Governor (NCT of Delhi) and Others, (2011) 10 SCC 1. This Court in the above case had occasion to consider control of Article 235 over the judicial officers of NCT of Delhi. This Court after elaborating the control of the High Court with reference to judicial officers of NCT Delhi had laid down that High Court alone is the sole authority competent to initiate disciplinary proceedings against Subordinate Judicial Officers or to impose various punishments. The contentions raised before the Court based on Article 239AA(4) of the Constitution that the Scheme in NCT Delhi is different was rejected. Following was laid down in paragraph No. 136:- "136. Reliance on Article 239-AA(4) is entirely out of place so far as the High Court is concerned, dealing with the judicial officers. To give any other interpretation to Article 239-AA(4) will be to defeat the supreme object underlying Article 235 of the Constitution, specially intended for protection of the judicial officers and necessarily independence of the subordinate judiciary. It is absolutely clear that the Governor cannot take the aid and advice of his Council of Ministers in the case of judicial officers and accept its adv....
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....nquiry into the conduct of a member of judiciary can be held by the High Court alone and no other authority. (State of West Bengal v. Nripendra Nath Bagchi (supra); Shamsher Singh v. State of Punjab (1974) 2 SCC 831; Punjab and Haryana High Court v. State of Haryana (sub nom Narendra Singh Rao,(1975) 1 SCC 831). (iii) Suspension from service of a member of the judiciary, with a view to hold a disciplinary inquiry. (b)Transfers, promotions and confirmation of such promotions of persons holding posts in the judicial service, inferior to that of District Judge. (State of Assam v. S.N. Sen, (1971) 2 SCC 899, State of Assam v. Kuneswar Saikia, (1969) 3 SCC 505). (c) Transfers of District Judges [State of Assam v. Ranga Muhammad (supra); Chandra Mouleshwar v. Patna High Court (supra)]. (d) Recall of District Judges posted on ex-cadre posts or on deputation on administrated posts. (State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647). (e) Award of Selection grade to the members of the judicial service, including District Judges it being their further promotion after their initial appointment to the cadre. (State of Assam v. Kuseswar Saiki....
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....tention of the Appellant that the business Rules and standing orders of the State of Tamil Nadu are quite different from the office orders and circulars issued by Union of India which formed the basis of the judgment in Gopinath's case. A close reading of the said judgment would disclose that reliance on the office note was only in addition to the interpretation of the Rule. 19. It is also settled law that if the Rule requires something to be done in a particular manner it should be done either in the same manner or not at all- Taylor v. Taylor (1875) 1 Ch. D. 426, 431. In view of the mandatory requirement of Rule 8(4) and the charge memo being drawn up or cause to be drawn up by the disciplinary authority is not complied with, we are of the considered opinion that there is no reason to interfere with the judgment of the High Court on this issue. The only addition we would like to make is to give liberty to the disciplinary authority to issue a charge memo afresh after taking approval from the disciplinary authority." 18. In the above case, charge memo was not drawn by the disciplinary authority, hence, this Court approved the decision of the High Court quashing cha....
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....V deals with inquiry into complaint and Section 13 deals with inquiry report, which is to the following effect:- "13. Inquiry Report.--(1) On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties. (2) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter. (3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be - (i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no s....
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....n the decision of the Full Court dated 13.07.2016 to suspend the petitioner and initiate the inquiry proceedings against the petitioner. Issue No. 3 23. The submission on which much emphasis has been made by the petitioner is that the copy of the Report dated 05.11.2016 referred to as a Preliminary Inquiry Report by the High Court has not been supplied to the petitioner by which he has been denied right to appeal. With regard to Preliminary Inquiry Report dated 05.11.2016, in paragraph Nos. 48 and 49, the High Court has made following assertions:- "48-49. The contents of para 48-49 are wrong and denied. The Petitioner is under the erroneous belief that the report dated 05.11.2016 which is only a Preliminary Inquiry Report should have been made available to him. That the inquiry has been conducted strictly in compliance with the procedure laid down in All India Services (Discipline & Appeal) Rules, 1965 and Office Memorandum dated 16.07.2015 issued by Department of Personnel & Training, Ministry of Personnel, Public Grievances and Pensions, Govt. of India. As per the said Office Memorandum, the ICC firstly conducted preliminary investigation/inquiry and then submitted....
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.... appeal to the court or tribunal in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist then, without prejudice to provisions contained in any other law for the time being in force, the person aggrieved may prefer an appeal in such manner as may he prescribed. (2) The appeal under sub-section (1) shall be preferred within a period of ninety days of the recommendations." 25. Thus, the right of appeal is given to an aggrieved person only when report is submitted under Section 13 to the employer. Section 13(3) contemplates the report of Internal Complaints Committee when it "arrives at the conclusion that the allegation against the respondent has been proved". It is not the case of any of the parties that the report of the Committee dated 05.11.2016 is the report where allegation against the petitioner has been proved. Even under Section 11(1) in the second proviso, the only contemplation is to make available a copy of the findings. Thus, when the report in which there are no findings, parties are not entitled to have the copy. High Court in its counter affidavit has pleaded that the Report dated 05.11.2016....