Procedure for Imposing Penalties in Sexual Harassment Cases upon Government Servants

 Article

 Procedure for Imposing Penalties in Sexual Harassment Cases upon Government Servants 

Section 11 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 provides that where the respondent is government employee, then the inquiry into the complaint should be made in accordance with the provisions of the service rules applicable to him. Most of the government servants are covered under CCS (CCA) Rules, 1965 or identical rules framed for different services. However, where procedure of inquiry is not delineated in respect of government employees, Rule 14 of CCS (CCA) Rules, 1965 may be followed.

The internal committee should as far as possible adhere to the procedure laid down under these rule. The CCS (CCA) Rules prescribe the nature of penalties and the procedure for imposing penalties by the competent authority.

Rule 7(4) of Sexual Harassment Rules says the complaints committee shall make inquiry into the complaint in accordance with the principles of natural justice, which includes:

·         Nemo debet esse judex in propria causa (No man should be judge be in his own case) - A man cannot judge his relatives or any person related to him in legal and he cannot be a judge in a case in which he is involved.

·         Audi altrem partem (Everyone should be given a right to be heard) - No decision can be taken without hearing both sides, decision must not be given by just hearing one side. It includes right to cross-examine. Right to legal representation forms the fundamental structure of right available to the accused in the Indian criminal justice system.

·         Justice should not be done, but it should appear to be done.

·         Final orders must be reasoned speaking order and reason for the decision must be clearly identifiable.

 

Penalties: Rule 11 provides for imposition of two types of penalties known as Minor Penalties and Major Penalties. Either of the two penalties can be imposed, for good and sufficient reasons, on a government servant, depending upon the gravity of the offence.

 

Minor Penalties – The following penalties are prescribed under the category of minor penalties that can be imposed after making preliminary enquiry, without going into detailed enquiry:

     i.           censure;

     ii.         withholding of his promotion;

    iii.         recovery from his pay of the whole or part of any pecuniary loss caused by him   to the Government by negligence or breach of orders;

   iiia    reduction to a lower stage in the time-scale of pay by one stage for a period not           exceeding three years, without cumulative effect and not adversely affecting his            pension.

  iv.     withholding of increments of pay;

 

Procedure for imposing Minor Penalties: Rule 16 lays down the procedure for imposing minor penalties. It can be imposed without conducting an enquiry, unless the disciplinary authority is of the opinion that such inquiry is necessary in accordance with the provisions of major penalty rules. For imposing Minor Penalties Rule 16 requires that:

 

(1) Before issuing an order to impose a minor penalty as specified above the following action should be undertaken-

a)    inform the Government servant in writing of the proposal to take action against him;

b)    inform him of the imputations of misconduct or misbehaviour on which action is proposed to be taken;

c)    give him reasonable opportunity of making such representation as he may wish to make against the proposal;

d)    take the representation, if any, submitted by the Government servant and the record of inquiry, if any, held,  into consideration;

e)    record a finding on each imputation or misconduct or misbehaviour; and

f)     consult the UPSC, where such consultation is necessary.

 

However, in case it is proposed to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the government servant or to withhold increments of pay for a period exceeding three years or to withhold increments of pay with cumulative effect for any period, then an inquiry shall be held by Inquiry Committee as per provisions of Rule 14 meant for  major penalty, before making any order imposing on the Government servant any such penalty. The record of the proceedings in such cases shall include-

 

(i)  a copy of the intimation to the government servant of the proposal to take action against him;

(ii)  a copy of the statement of imputations of misconduct or misbehavior delivered to him;

(iii) his representation, if any;

(iv) the evidence produced during the inquiry;

(v)  the advice of the Commission (UPSC), if any;

(vi) the findings on each imputation of misconduct or misbehavior; and

(vii)  the orders on the case together with the reasons therefor.

 

Major Penalties - The following major penalties can be imposed by the competent authority after conducting detailed enquiry by an enquiry committee, by following the due process of law:

 

(v) reduction to a lower stage in the time-scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay;

(vi) reduction to lower time-scale of pay, grade, post or Service for a period to be specified in the order of penalty, which shall be a bar to the promotion of the Government servant during such specified period to the time-scale of pay, grade, post or Service from which he was reduced, with direction as to whether or not, on promotion on the expiry of the said specified period -

(a) the period of reduction to time-scale of pay, grade, post or service shall operate to postpone future increments of his pay, and if so, to what extent; and

(b) the Government servant shall regain his original seniority in the higher time scale of pay, grade, post or service;

(vii) compulsory retirement;

(viii) removal from service which shall not be a disqualification for future employment under the Government;

(ix) dismissal from service which shall ordinarily be a disqualification for future employment under the Government.

 

However, in exceptional cases and for special reasons to be recorded in writing, any other penalty can also be considered and imposed.

 

Disciplinary Authorities: Rule 12 prescribes the authority for imposing penalties. As per this rule penalties can be imposed by different types of authorities such as Appointing Authority, Disciplinary Authority depending upon the class or service to which the respondent government servant belongs.

 

Inquiring Authority in sexual harassment cases- As per proviso to Rule 14(2) the internal committee established in each Ministry or Department or office shall be enquiring into sexual harassment complaints. The internal committee shall be deemed to be the inquiring authority appointed by the disciplinary authority. The committee shall hold the inquiry, so far as practicable, in accordance with the procedure laid down in the rules.

 

However, there is a major difference between an Inquiry Officer and internal committee. Normally, the enquiry under CCS (CCA) Rules is done by an inquiry officer whereas under provisions of Sexual Harassment Act a multiple member internal Committee headed by a Chairperson and not less than two Members should conduct the inquiry. In a regular disciplinary inquiry, the charges are framed by disciplinary authority or inquiry authority. However, in the case of sexual harassment at workplace there are two parties, the complainant and respondent. As such the complaint of the aggrieved women may form the statement of the imputation of misconduct or misbehavior.

 

Supreme Court Judgment: The court has held in the case of Medha Kotwal Lele [(2013) 1 SCC 297] that the committee constituted as a redressal mechanism for complaints of sexual harassment, will be deemed to be an inquiry authority for the purposes of CCS (CCA) Rules and the report of the committee shall be deemed to be an inquiry report under the CCS (CCA) Rules. The disciplinary authority will act on the report of this committee against sexual harassment, in accordance with the rules.

 

Procedure for imposing Major Penalties: Rule 14 lays down the procedure for conducting enquiry before imposing major penalties. The enquiry has to be conducted as per due process of law, keeping in view the rules of natural justice. This is being discussed separately.