Dismissed

P.J.Antony v. Spices Board

Kerala HC5 Dec 2023WA/181/2018

Case brief

AI extract

What is this about?

This intra-court appeal challenged the High Court's order imposing compulsory retirement on a former Assistant Director for workplace sexual harassment. The High Court found no illegality or perversity in the enquiry report and the imposition of retirement, not dismissal, holding that judicial review should not re-appreciate evidence absent clear malice.

What did the court decide?

The writ appeal was dismissed, upholding the order of compulsory retirement.

P.J.Antony Vs Spices Board — Pension and Retirement Benefits | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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TUESDAY, THE 5TH DAY OF DECEMBER 2023 / 14TH AGRAHAYANA, 1945
WA NO. 181 OF 2018

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AGAINST THE ORDER/JUDGMENT WPC 31798/2015 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:

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P.J.ANTONY
S/O.P.J.JOSEPH (LATE), RETIRED ASSISTANT DIRECTOR
(DEVELOPMENT), SPICES BOARD, RESIDING AT 7/929(7),
PALAPARAMBIL HOUSE, SANJAY NAGAR, SEKHARIPURAM P.O.,
PALAKKAD-678010.

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BY ADV
SRI.U.BALAGANGADHARAN

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RESPONDENTS/RESPONDENTS:

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1SPICES BOARD
REPRESENTED BY ITS SECRETARY, SUGANTHA BHAVAN,
N.H.BYEPASS, P.B.NO.2277, PALARIVATTOM P.O.,
ERNAKULAM-682025.

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2THE CHAIRMAN
SPICES BOARD, SUGANTHA BHAVAN, N.H.BYEPASS,
P.B.NO.2277, PALARIVATTOM P.O., ERNAKULAM- 682025.

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3THE SECRETARY
SPICES BOARD, SUGANTHA BHAVAN, N.H.BYEPASS, P.B.NO.2277,
PALARIVATTOM P.O., ERNAKULAM-682025.

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4 THE DIRECTOR DEVELOPMENT SPICES BOARD, SUGANTHA BHAVAN, N.H.BYEPASS, P.B.NO.2277, PALARIVATTOM P.O., ERNAKULAM-682025.

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5S.SIDDARAMAPPA
THE DIRECTOR (DEVELOPMENT), SPICES BOARD,
SUGANTHA BHAVAN, N.H.BYEPASS,
P.B.NO.2277, PALARIVATTOM P.O., ERNAKULAM-682025.

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6 SMITHA BHASI FIELD OFFICER, SUGANTHA BHAVAN, N.H.BYEPASS,

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P.B.NO.2277, PALARIVATTOM P.O.,
ERNAKULAM-682025.

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7THE SECRETARY
MINISTRY OF COMMERCE AND INDUSTRY,
DEPARTMENT OF COMMERCE, NEW DELHI-110001.

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BY ADVS.
SRI.O.V.RADHAKRISHNAN (SR.)
VISHNUDAS HARIDAS
GEORGE VARGHESE(K/1641/2021)
S.SOORYA GAYATHRY(K/00000285/2023)

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
05.12.2023, THE COURT ON THE SAME DAY DELIVERED THE

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FOLLOWING:

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JUDGMENT

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AMIT RAWAL, J.

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On account of being not successful before the Single Bench in laying challenge against the charge memo, enquiry report, penalty order and appellate order Exts.P18, P28, P30 and P32, present intra court appeal has been preferred on behalf of the appellant/petitioner– delinquent employee.

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The facts leading to filing of the writ petition before this Court are as follows:

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Appellant/petitioner is the former Assistant Director in Spices Board and had rendered thirty(30) years of unblemished service with good record of integrity and discipline. He started his career as Junior Field Officer in the year 1984, obtained various promotions and reached the post of Assistant Director in the year 2006. While working as Assistant Director at Kattappana, on account of a vacancy of Field Officer and on request submitted by him to the Head Officer to provide Field

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Officer on account of huge backlog of the work, respondent No.6 i.e, the complainant was transferred from Ernakulam Head Office to Kattappana Office. On 30.01.2012 received an order whereby he was transferred to Itanagar in Arunachal Pradesh vide Ext.P12. The aforementioned order of transfer was assailed in this Court vide Writ petition (C) No.2903 of 2012. An interim order on 12.04.2012 was granted and thereafter vide order dated 16.04.2012 Ext.P14, was suspended.

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Appellant learned that respondent No.6 had submitted a complaint to Woman Welfare Officer (hereinafter called ‘WWO’, in short) on the allegation that the appellant-petitioner not only misbehaved with her but found to be uncomfortable to work under him owing to the verbal abuse, unwelcome behaviour and discriminatory attitude. On 27^th of January, 2012 WWO submitted a report Ext.P15 which revealed receipt of two(2) complaints, both verbal, in other words, there were no written complaints. Report was also silent with

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regard to the particulars, date, name of the persons, nature of harassment, place where alleged act had taken place. The second report dated 21.02.2012 Ext.P16 was recommending the transfer of respondent No.6 to the Head Quarters so long as the appellant continue in Kattappana on the strength of the interim order granted by this Court. Sexual Harassment Complaints Committee, established in the department, did not conduct any enquiry on the complaints received and appointed Smt.M.R.Usha, Deputy Director to enquire into the issue and submit report, as per the order dated 13.03.2012. On the basis of the enquiry report, charge sheet dated 25.07.2012 Ext.P18 was served upon the petitioner along with the allegation of the charges. Dissatisfied with the explanation dated 12.07.2012 Ext.P19 employer appointed a Deputy Director as Enquiry Officer.

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Enquiry commenced from 18.09.2012. Umpteen number of witnesses and documents were brought on record and Enquiry Officer as per the report

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dated 25.09.2012 observed that the charges against the petitioner were proved. Explanation in pursuance of the enquiry report was submitted on 17.07.2012 Ext.P29. However dissatisfied with the explanation Disciplinary Authority vide order dated 11.09.2014 Ext.P30 contemplated to impose major penalty of compulsory retirement. An appeal under the provisions of Rule 19 of the Spices Board Service (Classification, Control and Appeal) Regulations, 1992 (hereinafter called as ‘Regulations’, for short) was preferred before the appellate authority. Appeal was also dismissed vide Ext.P32 dated 26.05.2015.

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Respondent Nos.1 to 4 contested the aforementioned case by filing a counter affidavit. Allegation of the appellant that the enquiry officer did not examine witnesses who were likely to support his case is only an attempt to protract/delay the enquiry. In fact the material placed on record fully proved the guilt of the appellant/petitioner. Reasonable opportunity was also given. Disciplinary proceedings were initiated after

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receiving two(2) independent complaints of sexual harassment from two(2) female employees who were working under the appellant/petitioner. Based upon the findings and preliminary enquiry, the formal disciplinary proceedings were initiated under Section 10 of the Regulations. On 11.07.2011 father of respondent No.6 was hospitalized which forced her to take leave to attend her ailing father. Considering the circumstances, the Chairman granted time till August, 2011 for respondent No.6 to join the duty at Kattappana Office. The allegation, that petitioner was not provided with the statement of respondent No.6 was emphatically denied. Copy thereof has been attached as Ext.R1(b) wherein she had denied the allegation of reluctance to work in high ranges, away from her house. Multiple questions were posed to respondent No.6 on behalf of the appellant/ petitioner but was unable to bring out anything to substantiate his unfounded allegations against respondent No.6.

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On receiving the complaint of sexual

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harassment appellant was transferred to Itanagar, in the light of the judgment of hon'ble Supreme Court in Visakha Vs.State of Rajastan (AIR 1997 SC 3011), but the said order was interdicted by the interim order of this Court and accordingly department was constrained to transfer respondent No.6 to the Development Section, Head Office, Kochi in order to protect her from further harassment at the hands of the appellant.

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Learned Single Bench after examining the documents as well as the legal position on record dismissed the writ petition.

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Learned counsel appearing on behalf of the appellant laying challenge to the order of the Single Bench has raised the following submissions:

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(i) The very allegation of sexual harassment raised by respondent No.6 was proved to be out of malice and prejudice nursed by her as she was repeatedly warned and admonished by the appellant.

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(ii) Learned Single Bench did not consider that the charges against the petitioner were vague as they did not

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specifically say as to when the alleged incident had taken place, nature of harassment, date of incident and the name of the witnesses. Sexual Harassment Complaint Committee was not properly constituted as per the decision in Visakha ’s case (supra). It mandates to have an NGO/outside Member with 50% of women representation. Third party member is co-opted to withstand undue pressure.

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(iii) The reports Exts.P15 and P16 did not contain any file number, date of origin and minutes of superior officers.

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(iv) Ext.P17 preliminary report reveals that respondent No.6 had been making complaints since September, 2011. However those complaints did not find place in any of the report of the sexual harassment committee for the last quarter of 2011, for, there was no such report of last quarter of 2011.

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(vi) Preliminary enquiry did not go into the specific contention of the appellant that the complaint of the respondent No.6 was fake and smacked of malice.

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(vii) There were gross procedural lapses committed by the enquiry officer which was brought to the notice of the learned Single Judge, i.e., material witness of Sri.Aneeshmon, Jeep Driver and Johny, Estate Manager were not summoned to disprove allegation of respondent No.6. Appellant had submitted list of witnesses but Enquiry Officer refused to summon them despite repeated requests.

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(viii) Many witnesses including the witnesses of the Board deposed in unequivocal terms that the appellant/petitioner never misbehaved with women.

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(ix) Allegation of sexual harassment by offering front seat of the jeep to respondent No.6 and also offer to share umbrella do not constitute sexual harassment or cannot be termed as physical advancement falling within the meaning of sexual harassment.

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(x) There was no written complaint from the complainant. In the absence of the same, complainant had every opportunity to change, detract and deviate from the earlier stand.

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(xi) Learned Single Judge did not consider the fact that findings in Ext.P28 report was without any material and perverse in nature. Report did not examine the veracity or admissibility with reference to the documentary evidence Exts.P1 to P11 which makes it clear that there was every possible likelihood for respondent No.6 having nursed malice against the appellant.

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In support of the aforementioned contentions relied upon the following case laws:

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Rajendra Roy v. Union of India and Another

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(1993 KHC 852) to contend that it may not be always possible to establish malice in a straight cut matter but possible to draw reasonable interference of malafide action from the pleadings and antecedent facts and circumstances.

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In Anil Gilurker vs. Bilaspur Raipur Gramin bank and another (2011 KHC 4854) it was held that the enquiry is required to be conducted against any person giving strict adherence to the statutory provisions and

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principles of natural justice. The charges should be specific, definite and should always include details of incident which formed the basis of charges. Charges have to be specific and not vague.

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On the other hand, learned counsel appearing on behalf of the respondents reiterated the stand taken in the counter by submitting that the findings on the preliminary enquiry and the order of the appellant authority are perfectly legal and justified. Umpteen number of material have come on record to establish case of sexual harassment against the appellant/petitioner. Considering his age, had been awarded only compulsory retirement instead of severe punishment of dismissal or removal. There is a little scope of judicial review for re-appreciating the evidence recorded by the enquiry Officer and examined by the appellate authority.

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We have heard learned counsel for the parties and appraised the paper book and of the view that there is no force on merit in the submission. The reasons are

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not one but many. Preliminary enquiry on the complaint of respondent No.6 dated 02.04.2012 of Deputy Director, Publicity and Assistant Director, Marketing recorded the version of Dr.K.Mary Mathew, Women Welfare Officer of Spices Board who narrated the sequence of interaction she had with respondent No.6- Ms.Smitha Bhasi an aggrieved party. Ms.Smitha Bhasi was also examined on 26.03.2012 and expressed her fear in continuing work in Kattappana Field Office under the control of the appellant/petitioner owing to the peculiar remarks, pronouncements, besides advancements of vulgar nature. When such attempts did not yield any result, appellant attempted to tarnish the image of an unmarried women by making false complaints.

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Appellant petitioner also appeared before the aforementioned committee and stated that he had never made any complaint against respondent No.6 as he was very considerable to her. The committee after analyzing the evidence brought on record found that it was a fit case where delinquent employee, i.e., the

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appellant/petitioner, was required to be charge-sheeted. It is in that manner the following list of charges was served upon him:

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“….The articles of charges framed against the petitioner were as follows:

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“ Article I

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That the said Sri.PJ Antony, while functioning as Assistant Director (Development), at Kattappana Development Office of the Board allegedly harassed his female subordinate staff by resorting to verbal abuse, unwelcome behaviour and discriminatory attitude, insulting remarks, using foul language and even made verbal and non verbal conduct and advances of sexual nature towards them. By his above acts towards his subordinate female staff, Sri.PJ Antony, had indulged in acts amounting to sexual harassment of female employees at work place and had conducted himself in a manner unbecoming of an employee of the Board, thereby violating rules 3-C(1) and 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964, applicable to employees of the Board.

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Article II

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That the said Sri.PJ Antony, has often been found applying for Earned Leave, LTC and other kinds of leave, without mentioning his

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actual leave address with ulterior motives. Each and every employee of the Board is supposed to inform his employer his proper address during leave period for communication, for contacting etc., in exigency. By his above act, Sri.PJ Antony, has conducted himself in a manner unbecoming of an employee of the Board, thereby violating rule 3(1)(i) & 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964, applicable to employees of the Board.

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Article III

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That the said Sri.PJ Antony, after reporting at the specified Headquarters during suspension period, i.e. Head Office of the Board i.e. Cochin without the permission or knowledge of any office staff, unauthorisedly took photocopy of the attendance register of the Development Wing of the Board with ulterior motives. By his above act, Sri.PJ Antony, has conducted himself in a manner unbecoming of an employee of the Board, thereby violating rules 3(1)(i) & 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964, applicable to employees of the Board.”

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Before the Enquiry Officer statement of various witnesses were recorded. It was noticed that the appellant had taken twenty eight (28) full days to cross

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examine respondent No.6 and asked her almost six hundred and sixty seven (667) questions but failed to doubt the veracity or anything to doubt her credibility, rather her testimony supported the charges levelled against him. Another witness was also subjected to lengthy cross-examination but could not be impeached despite extensive cross-examination. Appellant had invited respondent No.6 to share the seat with him in the jeep which was declined by her due to the conceivable reasons. The above invitation suggested of bad intention and an attempt to make sexual advances towards her.

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The imposition of punishment of compulsory retirement and dismissal of appeal gave cause of action to the delinquent employee to approach this Court. The law with regard to the interference in the enquiry report and the findings of the disciplinary and appellate authority is no longer res integra. Court have to be circumspect in causing interference until and unless there is a gross illegality in the process or violation of principles of natural justice.

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Declining of certain evidence by the enquiry officer was supported by reasons as it was an attempt to protract the final outcome of the enquiry in as much as that twenty-eight(28) days were taken for crossexamining the witness and almost attempted thousand questions. It is settled law that the constitutional court while exercising the power of the judicial review under Article 226 of the Constitution of India would not interfere with the findings of fact arrived at the departmental enquiry proceedings except there is cases of malafides or pervasiveness. The alleged malafides levelled against the then officer have also not been proved in the absence of any evidence, thus the inference drawn is that the enquiry officer had reasonably and objectively acted.

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The law regarding compulsory retirement has already been crystallised in view of the judgment laid down by the hon'ble Supreme Court in State of Gujarat Vs. Umedbhai M.Patel (2001) 3 SCC 314 wherein the following principles were laid down:

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“….11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus:

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(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.

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(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.

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(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.

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(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.

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(v) Even uncommunicated entries in the confidential record can also be taken into consideration.

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(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.

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(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.

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(viii) Compulsory retirement shall not be imposed as a punitive measure.”

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Sexual harassment at workplace by a senior employee would cover any action or gesture whether directly or by implication or aims at or has tendency to outrage the modesty of a female employee. Objectionable overcharge with sexual overtures are enough to constitute an offence of sexual harassment, such officers cannot be permitted to continue work and manage the sensitive posts where under him, many lady employees are working.

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There have been a tendency of superior officers subjecting sexual harassment to junior female employees. Such action, in our considered view, is an attempt to outrage the modesty, even in the absence of any physical contact. Writ Court in an intra court appeal cannot sit on the armchair of an appellate authority and

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re-appreciate the evidence until and unless the malice or impropriety or illegality has been writ large. An attempt was made to form a different opinion by referring to Exts.P1 to P5 complaints against respondent No.6 when specifically confronted the counsel representing the appellant as, all those complaints were after alleged date of incident, complaint made by respondent No.6.

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Non convening of the committee in consonance with Visakha ’s case would not vitiate the impugned proceedings particularly when appellant has been inflicted with the punishment of compulsory retirement, after following due procedure and it would not be stigmatic for seeking re-employment. There is no quarrel to the ratio decidendi culled out in the judgment supra but each case has to be examined on the touchstone of probability of the evidence brought on record.

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As an upshot of our findings, we do not find any illegality, perversity or any abdication in the judgment of

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