Dismissed

MD Riaz v. Union of India

Andhra Pradesh HC13 Oct 2020WP/4022/2019

Case brief

AI extract

What is this about?

A railway employee challenged a charge memorandum concerning alleged secret recording of a woman employee changing clothes. The Court upheld initiation of a regular departmental inquiry following the complaints committee report and dismissed the challenge as premature. It vacated interim protection and directed cooperation and completion without unnecessary delay.

What the court decided

AI extract

MD Riaz Vs Union of India — Service and Employment | Andhra Pradesh HC (2020)

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THE HON’BLE SRI JUSTICE RAKESH KUMAR AND THE HON’BLE Ms. JUSTICE J.UMA DEVI

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Writ Petition No.4022 of 2019

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(Proceedings taken up through video conferencing)

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ORDER : (Per Hon’ble Sri Justice Rakesh Kumar)

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The petitioner, who is a Station Superintendent (Group ‘C’), South Central Railway, Vijayawada Division, Ramachandrapuram Railway Station, East Godavari, has succeeded in stalling the departmental proceeding at the stage of issuance of Memorandum of Charge for such a long time.

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2. By communication, dated 12.02.2019, a Memorandum of Charge Sheet was issued to the petitioner under Rule 9 of Railway Servants (Discipline & Appeal) Rules, 1968 (hereinafter referred to as ‘Rules’). As per the Memorandum of Charge, he had committed serious misconduct by way of placing charger plug like device embedded with camera and memory card secretly in the old ticket book room (where the staff used to change uniforms & taking lunch) and recorded the dress changing videos of a woman employee, which was noticed by the victim employee and resulted in a complaint against the petitioner for sexual harassment at work place.

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3. Immediately after issuance of charge memo, the petitioner filed an application; vide O.A.No.20/00267/2019, before the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (hereinafter, referred to as “CAT”). The application before the CAT was filed with a prayer to call for the records pertaining to Memorandum No.BZA/Optg/Non-Vig/SF-5/04/2019, dated 12.02.2019 (i.e., Memorandum of Charge) and prayed for setting aside the said proceeding. The learned CAT, by its order, dated 20.03.2019, did not interfere in the matter and dismissed the same primarily on the ground of not availing

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alternative remedy. The CAT further observed that the applicant (writ petitioner herein) can approach the Tribunal, if aggrieved by the order to be passed by the appellate or revisional authorities. For better appreciation, the operative portion of the order, dated 20.03.2019, passed by CAT is quoted herein below:

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“We have gone through the submissions made on either side. In the first place, we are of the view that conducting fresh inquiry on the report of the ICC in the event of not following the prescribed procedure is not irregular or illegal. In the instant case, no final order has been passed pursuant to the report submitted by ICC. All the questions which the applicant urged before the Tribunal in the present OA, can be raised before appellate authority by filing appeal. Therefore, we do not think that any exceptional or extraordinary circumstances exist to entertain OA without exhausting alternative remedy. Hence the OA is dismissed at the stage of admission for not availing alternative remedy as laid down in Section 20 of the Administrative Tribunals Act, 1985. Applicant, however, can approach the Tribunal if he is aggrieved by the order to be passed by the appellate or revisional authorities. There shall be no order as to costs.”

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4. Before proceeding further, it is apt to reproduce the Memorandum of Charge, dated 12.02.2019, with statement of imputations of misconduct or misbehavior in support of article of charge memo against the petitioner.

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STANDARD FORM No.5 STANDARD FORM OF CHARGE – SHEET

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(Rule 9 of Railway Servants (Discipline & Appeal) Rules, 1968)

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SOUTH CENTRAL RAILWAY DRM’s Office Transportation Branch, Vijayawada. No.BZA/Optg/Non-Vg/SF-5/04/2019 Dt.12.02.19

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MEMORANDUM

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The undersigned propose/s to hold an inquiry against Sri Md. Riyaz, SS/RBCS under Rule No.9 of the Railway Servants (Discipline and Appeal) Rules, 1968. The substance of the imputations of misconduct or misbehavior in respect of which

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the inquiry is proposed to be held is set out in the enclosed statement of articles of charge (Annexure-I). A statement of imputations of misconduct or misbehavior in support of each article of charge is enclosed (Annexure.II). A list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained are also enclosed (Annexure.III and IV). Further copies of documents mentioned in the list of documents, as per Annexure III are enclosed.

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Sri Md. Riyaz, SS/RBCS is hereby informed and if he so desires, he can inspect and take extracts from the documents mentioned in the enclosed list of documents (Annexure-III) at any time during office hours within 10 days of receipt of this memorandum. For this purpose he should contact OS/DAR/Sr.DOM/O/BZA immediately on receipt of his memorandum.

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Sri Md. Riyaz, SS/RBCS is further informed that he may, if he so desires, take the assistance of another Railway Servant/an official of Railway Trade Union (who satisfies the requirements of Rule 9(13) of the Railway Servants (Discipline and Appeal) Rules, 1968, and Note-1 and/or Note-2 thee under as the case may be for inspecting the documents and assisting him in presenting his case before the Inquiring Authority in the event of an oral inquiry being held. For this purpose, he should nominate one or more persons in order of preference. Before nominating the assisting Railway Servant(s) or Railway Trade Union Official(s), Sri Md. Riyaz, SS/RBCS should obtain an undertaking from the nominee (s) that he is willing to assist him during the disciplinary proceedings. The undertaking should also contain the particulars of other cases if any, in which the nominee(s) had already undertaken to assist and the undertaking should be furnished to the undersigned along with the nomination.

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Sri Md. Riyaz, SS/RBCS is hereby directed to submit to the undersigned a written statement of his defence within ten days of receipt of this memorandum if he does not require inspecting any documents for the preparation of his defence and within ten days after completion of inspection of documents if he desires to inspect documents, and also

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(a) To state whether he wishes to be heard in person;

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And

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(b) To furnish the names and addresses of the witnesses

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if any, whom he wishes to call in support of his defence.

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Sri Md. Riyaz, SS/RBCS is informed that an inquiry will be held only in respect of those articles of charge as are not admitted. He should, therefore, specifically admit or/deny each article of charge.

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Sri Md. Riyaz, SS/RBCS is further informed that if he does not submit his written statement of defence within the period specified in para-4 or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of Rule-9 of the Railway Servants (Discipline & Appeal) Rules, 1968, or the orders/directions issued in pursuance of the said Rule, the inquiring authority may hold the inquiry ex-parte.

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The attention of Sri Md. Riyaz, SS/RBCS is invited to Rule 20 of the Railway Services (Conduct) Rules, 1966 under which no Railway servant shall bring or attempt to bring any political or other influence to bear upon any superior authority to further his interests in respect of matter pertaining to his service under the Government. If any representation is received on his behalf from another person in respect of any matter dealt within these proceedings it will be presumed that Sri Md. Riyaz, SS/RBCS is aware of such a representation and that it has been made at his instance and action will be taken against him for violation of (Rule-20) of the Railway Services (Conduct) Rules, 1966.

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The receipt of this Memorandum may be acknowledged by Sri Md. Riyaz, SS/RBCS on the form attached.

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(V.ANJANEYULU) DISCIPLINARY AUTHORITY & Sr.DOM/BZA

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Sri Md. Riyaz, SS/RBCS.”

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“ANNEXURE-I

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Statement of articles of charge framed against Sri Md. Riyaz, SS/RBCS

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Article-i

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That the said Sri Md. Riyaz, SS/RBCS has committed serious misconduct in that he placed charger plug like device embedded with camera and memory card secretly in the old ticket booking room (where the staff used to change uniforms & taking lunch) and recorded the dress changing videos of woman employee Smt.M.Sunitha, P. Woman/RBCS which was noticed by Smt. M.Sunitha, P.Woman/RBCS and resulted in a

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complaint against the sexual harassment of Sri Md. Riyaz, SS/RBCS at work place as detailed in the statement of imputations.

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Thus the said Sri Md. Riyaz, SS/RBCS acted in a manner unbecoming of a Railway Servant and violated Rule No.3(c) & 3(1)(iii) of Railway Services (Conduct) Rules, 1966.”

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“ANNEXURE-II

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Statement of imputations of misconduct or misbehavior in support of article of charge framed against Sri Md. Riyaz, SS/RBCS

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Article-i

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That the said Sri Md. Riyaz, SS/RBCS has committed serious misconduct in that he placed charger plug like device embedded with camera and memory card secretly in the old ticket booking room (where the staff used to change uniforms & taking lunch) without the knowledge of the employees in the working place and without the permission of administration. On 13.11.18, Sm.M.Sunitha, P. woman had found a light emitting from the charger like device in the old ticket booking room during her duty hours and on examination, she found that the device was embedded with camera and memory card. She taken out the memory card from the device and viewed the data through her mobile phone and found the data is containing her dress changing videos. Immediately, she informed to TI/COA and TI/COA conducted fact finding enquiry on 14.11.18.

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The complaint of Smt. M.Sunitha & the enquiry report of TI/COA handed over to the Committee of Sexual Harassment of BZA division by DRM/BZA and Complaints Committee conducted enquiry on the allegations made against Sri Md. Riyaz, SS/RBCS examining the Complainant, Respondent & five witnesses. The Committee has concluded in the report that “installing the device in a place without administration permission and without the knowledge of the employees in the working place that too when the complainant is the only female employee working in that period of time clearly evident that the Respondent Sri Md. Riyaz, SS/RBCS installed the camera like device with a malafide intention and ulterior motive to record the videos of the complainant. And the Committee recommended that the Respondent is guilty under the provisions of Sexual Harassment of Women at workplace

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(Prevention Prohibition and Redressal) Act, 2013 and should not be continued in the service.

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Thus the said Sri Md.Riyaz, SS/RBCS acted in a manner unbecoming of a Railway Servant and violated Rule No.3(C) & 3(1)(iii) of Railway Services (Conduct) Rules, 1966.”

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5. On perusal of the aforementioned Memorandum of Charge and imputations, it is evident that in respect of the charge, initially an inquiry was conducted under the provisions of Sexual Harassment of Women at workplace (Prevention Prohibition and Redressal) Act, 2013 (hereinafter referred to as the ‘Act’). Before the Inquiry Committee, the petitioner admitted regarding placing charger plug like device embedded with camera and memory card secretly in the old ticket book room, but took a plea as if the same was installed for watching the working of the employees during morning timings. However, as per the complaint by female personnel, it has come that in the camera embedded with device; there was recording of changing of dress by the female employee. Accordingly, the Inquiry Committee in its report concluded as follows:

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“Thus, the admission by the Respondent of installing the above device in a place without administrative permission and without the knowledge of the employees working in that place during morning timings that too when the complainant is the only lone female employee working in that period of time clearly evident that the respondent with a male fide intention and ulterior motive installed the device to record the videos of the complainant which is an unwelcoming act or behavior of any person at work place. And the reasons stated by the respondent for installing the device are vague and baseless and such statements are not plausible. The admission of respondent that he placed the device is sufficient to prove his guilt. Further, the complainant shown the copies videos from the device embedded with camera and memory card placed by the respondent to the female members in the committee wherein it is seen that the dress changing scenes of the complainant got recorded. Thus, the committee found the respondent guilty taking into consideration the admissions of the respondent and the undertaking given by him to the

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complainant. The Committee found the writ petitioner guilty taking into consideration the admission of the petitioner and the undertaking given by him to the complainant. Finally, the Committee recommended as follows:

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The committee having found Sri Mohammed Riaz as guilty under the provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, it is recommended that the respondent should not be continued in service further.

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A female member should be included in a preliminary Inquiry Committee nominated to visit the place of incident for conducting preliminary enquiry.

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It is recommended to Change the designation of Pointsman to Pointsperson and all the designation should have gender neutral.

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Better to avoid posting of female employees at secluded stations like RBCS where lone female employee are required to perform duty from morning to evening.

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6. Of course, in the recommendation of the Committee, it was recommended that the petitioner should not be continued in service further. The Disciplinary Authority, with a view to follow the principle of ‘ Audi alteram partem ’, finally decided to initiate disciplinary proceedings; and, as such Memorandum of Charge Sheet was issued, vide letter No.BZA/Optg/Non-Vg/ SF-5/04/2019, dated 12.02.19 (Exhibit P3).

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7. Aggrieved with the initiation of departmental proceedings, the petitioner approached the CAT, where he lost; and then he filed the present writ petition for issuance of a Writ, Order or direction, particularly one in the nature of Certiorari by calling for the order, dated 20.03.2019, in O.A.No.020/00267 of 2019 on the file of the Central Administrative Tribunal, Hyderabad; and, set aside and quash the order of the learned Tribunal, dated 20.03.2019, along with Memorandum No.BZA/Optg/Non-Vig/SF-5/04/2019, dated 12.02.2019, along with the report of the Inquiry conducted on 04.12.2018, served under letter, dated 05.12.2018, and grant all consequential benefits to the petitioner as if the subject proceedings are not pending against

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the petitioner, duly revoking the suspension from duty forthwith and pass such other order or orders as may be deemed fit and proper. Along with the writ petition, the petitioner also filed an interlocutory application, vide I.A.No.1 of 2019, which was allowed on 08.04.2019, and order was issued for interim suspension of the impugned proceeding. Subsequently, the respondents/ Railways filed counter affidavit and also petition for vacating the interim suspension order, dated 08.04.2019. The writ petition remained pending. Thereafter, on 24.09.2020, the writ petition was taken up on which date, we heard Sri K.R.K.V.Prasad , learned counsel for the petitioner and Smt. N.Sasikala , learned Standing Counsel appearing on behalf of respondents/Railways at length. On the date, learned counsel for the petitioner wanted to upload some judgments on which he wanted to place reliance. Accordingly, hearing in the matter was adjourned to 30.09.2020. On 30.09.2020, this Court recorded that the present writ petition was heard on 24.09.2020 on which date, Sri K.R.K.V.Prasad , learned counsel for the petitioner had placed his arguments. Smt. N.Sasikala , learned Standing Counsel had also argued to some extent. It is necessary to reproduce the order, dated 30.09.2020, which is quoted herein below:

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“ The present writ petition was heard on 24.09.2020, on which date, Sri K R K V Prasad, learned counsel for the petitioner had placed his arguments.

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Smt. N.Sasikala, learned Standing Counsel for Railways had also argued up to some extent.

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On the date of hearing, learned counsel for the petitioner wanted to upload some judgments on which he was intending to place reliance; and, as such on 24.09.2020, the matter was deferred for further hearing and today again, the matter has been listed for further hearing.

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At the time of hearing, Sri Ravi Kiran , learned counsel, who has appeared on the instructions of Sri K R K V Prasad, learned counsel for the petitioner, submits that he has already uploaded all the judgments on which he is placing reliance. However, on being asked, he was not in a position to refer part of any judgment on which reliance was placed.

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However, it was reiterated that the judgments on which reliance has been placed have already been uploaded.

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Learned Standing Counsel for Railways submits that she has also uploaded judgments.

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It was informed by the office that those judgments are not on record.

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Registry is directed to locate and place those judgments on record.

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Put up on 06.10.2020, as a first case, for reply by Smt. N.Sasikala , learned Standing Counsel for Railways, since at the very outset, it was informed by the learned counsel for the petitioner that he has already concluded arguments and the matter is coming up for reply by the learned Standing Counsel for Railways.”

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8. Thereafter, on 06.10.2020, when the matter was taken up, learned counsel for the petitioner again reiterated that he had uploaded judgments on which he was placing reliance. However, he did not refer to any paragraphs of

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the relied upon judgments except saying that the judgments were uploaded. Similarly, the learned Standing Counsel for respondents-Railways after arguments submitted that she also uploaded judgments; and thereafter, order was reserved.

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9. Even though by way of issuance of memorandum of charge for serious misconduct, respondent/employer tried to proceed with the departmental proceedings against the petitioner; but for one reason or the other, proceeding has been stalled till date.

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10. Learned counsel for the petitioner assailing the Memorandum of Charge Sheet has raised several grounds. He submitted that once an inquiry was already conducted by the Inquiry Committee constituted under the provisions of the Act and a report was submitted, there was no reason for the disciplinary authority to conduct further enquiry. He emphasized that the said allegation was to be enquired into following the prescribed guidelines vis-à-vis the provisions of the Act. He has raised several grounds for assailing the initiation

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of departmental proceedings; and, argued that the subject matter of sexual harassment of women at work place has to be dealt with strictly in accordance with the provisions of the Act, which are aligned with the Service Rules as specified in RBE No.15/2015, dated 05.03.2015, and RBE No.114/2015, dated 23.09.2015, issued by the Ministry of Railways (Railway Board). This has been admitted by the 4^th respondent in the letter, dated 13.03.2019. He further submitted that the complaint was directly entertained by one V.M.V.Satish, Traffic Inspector, who was not competent to receive any complaint relating to the sexual harassment under the aforesaid Act/instructions. By involving himself in the subject issue, when a report, dated 14.11.2018, was sent by him to the 4^th respondent, after the petitioner was suspended by the Traffic Inspector himself, the report of the Traffic Inspector was forwarded to the Internal Complaints Committee constituted under Section 4(2) of the Act. Hence, the proceedings of the Internal Complaints Committee commenced under prejudice vis-à-vis the report of the said Traffic Inspector. The said report of the Traffic Inspector also shows clearly that the complainant has meddled with the CC Camera by taking out the memory card from the said camera and interfered with the data. The CC Camera after its seizure was kept with the said Traffic Inspector, which also clearly show further meddling with the device. Learned counsel has argued to the extent that even the alleged place at which the Camera was fixed was not a part of work place as defined in Section 2(o) of the Act. There was no reason for the complainant, who has to perform her duties at the Level Crossing Gate from 07.00 AM to 07.00 PM in a day, to visit the station building at the alleged point of time during the said duty hours for changing the dress. The alleged Camera was fixed in a public place and do not interfere with the privacy of the complainant, as the place at which it was alleged that the complainant changed the dress, was not a place meant for such purpose. The alleged act also does not fall under the definition of ‘sexual harassment’ as specified in Section 2(n) of the Act. Learned counsel

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has further argued that in terms of Section 4(2) of the Act, the composition of the Internal Committee shall comprise of a Presiding Officer, two Members from amongst employees preferably committed to the cause of women, one Member from Non-Governmental Organization or Associations committed to cause of women with a further condition that atleast one half of the total Members so nominated shall be women. Whereas, the Internal Committee, which conducted the inquiry, comprised of only one Chairperson and two other Members, hence short by one Member as per the composition prescribed in the Statute. Learned counsel would point out that the report of the Committee contained a recommendation that the petitioner (the respondent before the Committee) should not be continued in service further. The said report of the Internal Committee is a report submitted by the Inquiry Authority in terms of the provisions of the Statute. Whereas, the said Committee without following the procedure prescribed in Rule 9 of the Rules and without affording reasonable opportunity to the petitioner, submitted their report by finding the petitioner as guilty and with a recommendation that the respondent before the Committee i.e., the present petitioner should not be continued in service further. Such finding/ recommendation of the Inquiry Authority is not only in violation of Rule 9 of the Rules, but also in violation of the instructions at para 11 of Annexure-II of RBE No.114/2015 issued by the Ministry of Railways.

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11. Sri K.R.K.V.Prasad , learned counsel for the petitioner has taken a plea that the Senior Divisional Operations Manager, respondent no.4, was not the appointing authority of the petitioner; and, as such he cannot act as Disciplinary Authority. Learned counsel for the petitioner on the aforesaid grounds has assailed the order of the CAT as well as the Memorandum of Charge.

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12. Learned counsel for the petitioner has relied upon the following decisions:

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(1) Medha Kotwal Lele v. Union of India¹

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(2) L.S.Sibu v. Air India Limited²

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(3) L.V.Pradeep v. Andhra University, Visakhapatnam³ (4) Union of India v. N.B.Joshi⁴

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(5) K.J.Shephard & Others v. Union of India⁵

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(6) Kailash Chandra v. The Union of India⁶

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(7) Harbanslal Sahnia v. Indian Oil Corporation Ltd.⁷ (8) Kuntesh Gupta v. Hindu Kanya Maha Vidyalaya⁸

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13. Learned Standing Counsel for the respondents/Railways relied upon the following decisions:

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(1) P.S.Malik v. High Court of Delhi⁹

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(2) Dinesh Chandra Mishra v. Indian Council of Agriculture Research and others¹⁰

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(3) Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh and others¹¹

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It is true that on behalf of the petitioner, judgments on which reliance was to be placed were uploaded by the learned counsel for the petitioner, however, learned counsel for the petitioner, at the time of hearing, refrained to place reliance even on a single paragraph of any of the uploaded judgments. Similarly, learned counsel for the respondents/Railways though uploaded judgments, she too, had not referred to any paragraphs of the judgments; and,

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1 (2013) 1 Supreme Court Cases 297

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2 W.P (C) No.4001 of 2016, dt.25.09.2014 (Kerala High Court)

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3 2016 (5) ALD 397

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4 W.P.No.6710 of 2003, dt.19.04.2018 (Bombay High Court)

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5 1987(4) SCC 431

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6 AIR 1961 SUPREME COURT 1346 (1)

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7 AIR 2003 SUPREME COURT 2120

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8 (1987) 4 Supreme Court Cases 525

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9 2019 SCC Online SC 1070

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10 2019 SCC Online Del 8891

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11 (1996) 1 SCC 327

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as such, there is no reason to discuss about the ratio of the uploaded judgments on which such reliance was placed.

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14. We have cursorily examined the judgments cited by learned counsel appearing for both the parties.

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15. By way of referring to paragraph No.4 of the affidavit filed in support of the stay vacating petition, it has been argued by Smt. N.Sasikala , learned standing counsel for respondents/Railways that the Senior Divisional Operations Manager, Vijayawada, who is Junior Administrative Grade Officer and Disciplinary Authority is a competent authority. According to the learned Standing Counsel, the petitioner himself admitted that he had purchased device embedded with camera and memory card and using the same since 05.11.2018 and he only placed the device in the office without the administrative permission and without the knowledge of the employees working in the place to know the working of the employee during morning time. She submits that after receipt of the complaint from a female employee, an inquiry was conducted under the provisions of the Act by an Inquiry Committee and after receipt of the report of the Inquiry Committee, whereby four recommendations were made, the petitioner, vide letter, dated 05.12.2018 (Exhibit P4), was communicated with copy of the inquiry report and he was asked to file his response so that suitable decision may be taken by the Disciplinary Authority. According to the learned standing counsel for the respondents, subsequently, a decision was taken by the Disciplinary Authority to initiate regular departmental proceedings under Rule 9 of the Rules; and, as such, impugned Memorandum of Charge was issued with articles of charge, imputation with list of documents and witnesses also. The petitioner, by the memorandum of charge sheet, was also informed that if he wanted to inspect or take extracts from the documents within ten days, he may contact the concerned officer. According to the learned standing counsel for the

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respondents, at the stage of issuance of memorandum of charge in relation to serious misconduct, the petitioner was not either entitled to approach the CAT or approach this Court. She submits that the petitioner by way of filing the present writ petition is virtually trying to stall a departmental proceeding, which is otherwise legally required to be initiated. She also submitted regarding uploading of the judgments on which reliance was to be placed. However, she too has not referred to any of the paragraphs of the judgments.

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16. Besides hearing learned counsel for the parties, we have minutely perused the material available on record.

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17. The fact remains that on an allegation of serious misconduct relating to commission of offences under the Act; initially an inquiry was conducted by the Inquiry Committee constituted under the provisions of the Act. After inquiry, a report was submitted by the Inquiry official with four recommendations which have already been referred to herein above. Amongst four recommendations, there was one recommendation, which was to the effect that the petitioner should not be continued in service. The Railway Board, vide RBE No.15 of 2015, dated 05.03.2015, issued instructions on the subject of alignment of Service Rules with the Sexual Harassment of Women at workplace (Prevention, Prohibition and Redressal) Act, 2013. Clause 5.7 of the aforesaid provisions deals with inquiry report. For better appreciation, Clause 5.7, which has been placed at page No.103 of the writ petition, is reproduced herein below:

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“5.7 Inquiry report As per Section 13 of the Act, the following action will be taken on the inquiry report of the Complaints Committee:(i) On completion of the inquiry, the Internal Committee shall provide a report of its findings to the disciplinary authority within ten days from the day of completion of inquiry and such report shall be made available to the concerned parties.

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(ii) Where the Internal Committee arrives at the conclusion that the allegation against the charged official has

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not been proved, it shall recommend to the disciplinary authority that no action is required in this matter.

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(iii) Where the Internal Committee arrives at the conclusion that the allegation against the charged official has been proved, it shall recommend to the disciplinary authority(a) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the charged official. (b) to deduct, notwithstanding anything in the service rules applicable to the charged official, from the salary or wages of the charged official such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine in accordance with the provisions of section 15 of the Act. Provided that in case the Railway is unable to make such deduction from the salary of the charged official due to his being absent from duty or cessation of employment it may direct to the charged official to pay such sum to the aggrieved woman. Provided further that in case the charged official fails to pay the sum, the Internal Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer. Such compensation awarded by the Internal Committee to the aggrieved woman or to her legal heirs shall not amount to penalty under Rule 6 of RS (D & A) Rules, 1968. The Disciplinary Authority shall act upon the recommendation within sixty days of its receipt by him.

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Action is being taken to amend Rule 6 of RS (D&A) Rules to provide that such compensation will not amount to a penalty under Rule 6 RS (D&A) Rules.

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18. In view of Clause 5.7 (iii)(a), it is evident that if the charge against the charged official is proved in the Inquiry report, an appropriate action for sexual harassment as misconduct can be taken against the delinquent under the Service Rules. In view of the aforesaid fact, it is evident that after the submission of the inquiry report, which has been placed in the writ petition, at running page Nos.48 to 50, the Disciplinary Authority has proposed to initiate regular departmental enquiry as per Rule 9 of the Rules. (Exhibit P.18). Further, clause (5.11) of the said instructions, i.e., running page No.105 of

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Exhibit P.18 makes it clear that any person aggrieved by the recommendations made under Section 13 of the Act, may file appeal under clause (5.13).

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19. In the present case, though the first recommendation of the inquiry report was to the effect that the petitioner should not be continued in service further, the Disciplinary Authority proposed to initiate regular departmental enquiry. It goes without saying that against serious misconduct; the initiation of departmental proceeding may not be interfered with. At the stage when the petitioner had approached this Court, no cause of action arose for the petitioner. The petitioner would have been advised to participate in the departmental proceeding and only after conclusion of the departmental proceedings, if any adverse order is passed, the petitioner can have an opportunity to challenge the same before an appropriate Forum. In any event, the petitioner may not be permitted to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, against an action, which is premature.

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20. On a cursory examination of the judgments on which reliance was placed by the learned counsel for the petitioner, it is evident that in none of the cases, it has been held that the Disciplinary Authority can be restricted from initiating regular departmental enquiry on a charge of serious misconduct. In the present case, obviously, on an inquiry under the provisions of the Act, the allegations were found to be true and in the departmental proceedings, the petitioner can participate and may produce materials to show his innocence. In any event, before conclusion of departmental enquiry in the present case, which reflects charge of serious misconduct, this Court may not interfere; and, as such, there is no reason to interfere with either the order of the CAT or with the Memorandum of Charge. Accordingly, the writ petition is liable to be dismissed. However, it is necessary to observe that considering the fact that the allegations pertain to an alleged misconduct, which occurred in the year

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RK, J & JUD, J W.P.No.4022 of 2019

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2018, it is desirable for the Disciplinary Authority to proceed with the departmental proceedings in accordance with law and bring the same to its logical end without unnecessary delay. The petitioner is also directed to cooperate with the Disciplinary Authority in the departmental proceedings.

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20. With the aforesaid observations and directions, the Writ Petition stands dismissed.

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Consequently, interim order earlier granted stands automatically vacated.

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There shall be no order as to costs.

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Pending miscellaneous petitions, if any, shall stand closed.

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______________ Rakesh Kumar, J

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____________ J. Uma Devi, J