Madras High Court
S.Ravi Selvan vs Central Board Of Indirect Taxes & …
Author: Anita Sumanth
Bench: Anita Sumanth
2025:MHC:2071
W.A.No.2388 of 2022 & W.P.No.11457 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 31.01.2025
Pronounced on: 20.08.2025
CORAM :
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
and
THE HONOURABLE MR.JUSTICE G. ARUL MURUGAN
WA.No.2388 of 2022 and
CMP.No.14442 of 2024 and
CMP.No.18244 of 2022 and
CMP.Nos.2733 & 4018 of 2023 and
WMP.Nos.11338, 11339 & 5149 of 2023 and
WP.No.11457 of 2023
WA.No.2388 of 2022:
S.Ravi Selvan .. Appellant
vs
1.Central Board of Indirect Taxes & Customs
Represented by the Chairman
North Block
New Delhi – 110 001.
2.Internal Complaints Committee
Headed by Ms.Prachi Saroop, IRS
Principal Additional Director General
Directorate General of Vigilance
West Zonal Unit
New Custom House,
Annex Building, 7th Floor
Mumbai – 400 001.
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3.The Principal Chief Commissioner
Central Goods Services Tax & Central Excise
Tamil Nadu & Puducherry Zone
121, Uthamar Gandhi Salai,
Nungambakkam, Chennai-600 034.
4.XYZ
(in accordance with para 1
of the impugned judgment)
5.The Chief Commissioner
Chennai Customs Zone
Custom House,
No.60, Rajaji Salai
Chennai – 600 001.
..Respondents
Prayer : Appeal filed under Clause 15 of Letters Patent against order
dated 09.09.2022 made in W.P.No.17798 of 2022 on the file of this
Court.
AND
WP.No.11457 of 2023:
1.Union of India,
Represented by Deputy Secretary
To the Government of India,
Ministry of Finance,
Department of Revenue,
Central Board of Indirect Taxes and Customs,
2nd Floor, Hudco Vishala Building,
BhikajiCama Place,
New Delhi – 110066.
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2.Internal Complaints Committee,
Headed by Ms.Prachi Saroop IRS,
O/o Internal Complaints Committee of Chennai Customs,
Department of Revenue,
Custom House,
No.60 Rajaji Salai
Chennai – 1
3.The Chief Commissioner of Customs,
Chennai Custom Zone,
Custom House,
No.60, Rajaji Salai,
Chennai-600 001. ... Petitioner
Vs.
1.Mr.S.Ravi Selvan, IRS,
The Principal Commissioner of GST and
Central Excise,
(Under Orders of Suspension)
1071, TVS Colony, Anna Nagar
West Extension,
Chennai – 600 101.
2.The Registrar,
Central Administrative Tribunal,
Chennai Bench, Chennai. ... Respondents
Prayer in WP.No.11457 of 2023: Petition filed under Article 226 of the
Constitution of India praying to issue a writ of Certiorari, calling for the
records on the files of the 2nd Respondent in its impugned proceedings
made in OA/310/00609/2022 dated 20.02.2023 quash the same.
Case Nos. For Appellants/ For Respondents
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Petitioners
WA.No.2388 of Mr.M.Ravi Mr.AR.L.Sundaresan,
2022 Additional Solicitor
General
assisted by
Mr.M.Santhanaraman,
Senior Standing Counsel
(For R1 to R3 & R5)
Ms.R.Vaigai,
Senior Counsel
For Ms.Anna Mathew
(For R4)
WP.No.11457 of Mr.AR.L.Sundaresan, Mr.M.Ravi (for R1)
2023 Additional Solicitor
General assisted by R2 – Tribunal
Mr.M.Santhanaraman,
Senior Standing
Counsel
COMMON JUDGMENT
(Delivered by Dr.ANITA SUMANTH.,J)
Part A : WA.No.2388 of 2022
W.P.No.17798 of 2022 had been filed by the unsuccessful writ
petitioner before us, seeking a declaration that all action and proceedings
on the file of the Central Board of Indirect Taxes and Customs (CBIC)
and the Chief Commissioner, Chennai, Customs Zone, pursuant to a
complaint filed on 24.05.2022 by XYZ/R4 (‘complaint’/’sexual
harassment complaint’) and to investigate which, an Internal Complaints
Committee (ICC) had been constituted and a notice issued by the ICC on
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04.06.2022, were illegal and ultra vires.
2. The Writ Petition had been dismissed on 09.09.2022 as not
maintainable. The learned Judge has, in the order impugned in this Writ
Appeal, opined that there are disputed questions of fact in regard to
various contentions raised by the appellant and by XYZ, including
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.
3. The appellant had only been issued a notice calling for his
explanation and had replied to the same. Not even an inquiry report had
been given, learned Judge states at paragraph 48 of his order and hence
the Writ Petition, apart from being non-maintainable was also pre-mature.
It is as against that order that the present Writ Appeal has been filed.
4. Detailed submissions of Mr.M.Ravi, learned counsel for the
appellant, Mr.AR.L.Sundaresan, learned Additional Solicitor General
assisted by Mr.M.Santhanaraman, learned Senior Standing Counsel for
R1 to R3 and R5 and Ms.R.Vaigai, learned Senior Counsel for Ms.Anna
Mathew, learned counsel for XYZ/R4 have been heard.
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5. Even at the commencement of the hearing, R4 has gone out of
the way to reiterate that there is no error in the order of the learned Judge
in dismissing the Writ Petition on the ground of maintainability. Their
detailed submissions made thereafter on the various aspects that arise for
resolution, are without prejudice to the maintainability of the writ
petition/appeal, and in the interests of obtaining a decision on certain vital
aspects of the litigation and should not be taken to be acquiescence on the
question of maintainability.
6. The submission is well taken. The mere fact that the respondents
have argued the matter on merits does not whittle down the position that
the Writ Petition was, in fact, not maintainable with which conclusion of
the learned Judge we agree fully. The purpose of this order is to set at rest
certain legal issues that have been raised which we address hereinafter in
seriatim.
7. The attempt of the appellant has been to quash the complaint
even at the preliminary stage of inquiry by the ICC. To this effect, great
pains have been taken by the learned counsel appearing on his behalf to
take us through the relevant enactments and Rules, illustrate the lack of
any truth in the sexual harassment complaint, the aspect of bias, as well
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as the alleged lapses by R4 in the processing of the Declaration of an
assessee, one M/s.Heaven Engineering, under the Sabka Vishwas
(Legacy Dispute Resolution) Scheme, 2019 (in short ‘SVLDRS Scheme’)
for settlement of arrears of Service tax.
8. Per contra, equally strenuous if not greater efforts have been
taken by learned Senior Counsel appearing for the learned counsel for the
official Respondents as well as R4, who reiterate the contents of the
complaint, and takes us minutely through various provisions of the POSH
Act, relevant Regulations, the Service Rules, the SVLDRS Scheme and
the technological processes involved in the processing of Declarations
under that Scheme, to illustrate that no fault can be attributed to XYZ in
the matter.
9. XYZ had filed the complaint on 24.05.2022 before R1 alleging
sexual harassment at work place by the appellant. That complaint, the
appellant points out, has been given on the heels of a memorandum
issued to R4/XYZ by the Additional Commissioner (P&V) on 28.02.2022
calling for an explanation for certain lapses in processing the Declaration
filed by one Sundaram Sathishkumar, Proprietor of Heaven Engineering,
Chennai (in short ‘assessee’), under the SVLDRS scheme that had been
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floated by the Customs Department for settlement of tax arrears.
10. Hence it is the case of the appellant that the sexual harassment
complaint is nothing but a counter blast by R4 to the investigation that
has been launched against her, and has absolutely no substance otherwise.
11. XYZ for her part, has made allegations under the complaint to
the effect that the harassment had commenced in 2020 when she had been
posted as Assistant Commissioner, Chennai Outer GST Commissionerate
and the appellant was holding the position of Commissioner (Appeals),
Chennai Customs.
12. XYZ alleges that thereafter, the appellant started calling XYZ
on her mobile phone and sending whatsapp messages. His calls were at
odd hours and the content was inappropriate. Since he was a superior
authority, she was uncomfortable about ignoring calls which she was
inclined to doing on account of the discomfort that she felt with his
constant harassment and pressure. She specifically alleges that around
20th of April, 2020, during covid lockdown, he had asked her to
accompany him to a bar. She declined and blocked his number, despite
which he had continued pestering her.
13. In December, 2021, XYZ was posted at Import
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Commissionerate and the appellant was holding charge of the post of
Commissioner (Appeals). Both Commissionerates were functioning in
the same building. On one occasion, when they had bumped into each
other in the building, he had asked her to come into his room and she had
no choice but to comply along with a colleague who was with her. When
they left, the discomfort felt by XYZ and the intimidating behavior of the
appellant had been noticed by her colleague.
14. She alleges that the appellant had used every opportunity to
speak disparagingly about her to all colleagues and did not lose any
opportunity to make sarcastic comments about her and in her presence.
According to XYZ, the memo issued to her in February, 2022 calling for
an explanation, was at his instance. XYZ attacked the memo, stating that
it had been issued directly by the Additional Commissioner, GST
Commissionerate without any approval by, or intimation to the Chief
Commissioner or Customs Commissioner, which is the proper procedure
to be followed.
15. According to her, this was done only at the instance of the
appellant, who bypassed all the proper procedures merely to intimidate
her. It had been issued one and a half years after she moved out of the
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Commissionerate.
16. The appellant would argue that the sexual harassment
complaint contains a detailed explanation in regard to the specifics under
the SVLDRS Scheme, which strikes a discordant note as far as the
allegations of sexual harassment, are concerned. XYZ has, in complaint
dated 24.05.2022 belaboured on the provisions of the SVLDRS Scheme
under the SVLDRS Act, 2019 and outlined the procedures followed to
process the application of the assessee under the SVLDRS Scheme.
17. According to her, her actions were correct and any inquiry
would vindicate those actions in full. She reiterates that it is only on
account of her rebuffing the appellant, that the memo was issued to her in
the first place. On the other hand, the appellant would submit that the
complaint has itself been filed only to divert attention from the memo
issue to R4 for her lapses in duty.
18. R4 has put forth three requests in complaint dated 24.05.2022.
Firstly, that immediate action be taken under her complaint dated
24.05.2022 for sexual harassment by the appellant, secondly, remove the
file relating to the memorandum issued to her in regard to the SVLDRS
application and assign the same to a senior officer who may enquire into
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it independently and without bias, and thirdly to look into the reasons
why the appellant had not adjudicated the show cause notice issued to the
assessee in February, 2020, despite the SVLDRS being clear that action
ought to be taken for false declarations.
19. A copy of the complaint has been forwarded to the Member
(Administration and Vigilance), CBIC, the Principal Chief
Commissioner, Tamil Nadu and Puducherry GST Zone, Chief
Commissioner, Chennai Customs Zone (R5) and Principal
Commissioner, Chennai – 1 Commissionerate (Airport).
20. The first issue raised by the Appellant relates to the question of
limitation. The complaint has been filed on 24.05.2022 in relation to
alleged events that had transpired in 2020 and 2021. Section 9 of the
POSH Act prescribes a limitation of 3 months within which a complaint
of sexual harassment should be made. Since the complaint is filed beyond
that period, the same should not be entertained, it is argued.
21. Per contra, R4 would urge that there has been no delay in the
making of the complaint and, in fact, the harassment continued as the
very issuance of the charge memo was an act of harassment by the
Appellant and a result of her spurning his advances. The limitation for
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filing of a complaint is set out under Section 9(1) of the POSH Act,
which says that any aggrieved person may make a complaint in writing of
sexual harassment at the work place within three months from the date of
incident and in case of a series of incidents, within three months from the
date of last incident.
22. The appellant has submitted that the complaint in the present
case has been made far beyond the statutory limitation and hence is
barred by the provisions of the POSH Act. Several decisions are cited,
and our attention is specifically drawn to the decisions of this Court in
Dr.P.Govindaraju1 and of the Punjab and Haryana High Court in Vivek
Tyagi and Ors2 where the Courts have held that the provision relating to
limitation is mandatory.
23. In the present case, the complaint refers to a series of allegedly
offensive incidents when, according to R4, the harassment had taken
place, adumbrated as follows:
a) The first meeting of R4 with the appellant was in 2020. There
after, she alleges that he pestered her through calls and whats
1 Foot Note Infra (8)
2Foot Note Infra (19)12/74
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things.
b) In the course of those conversations, he asked her personal
questions which made her feel unsafe. Though she avoided his
calls, the mental pressure of ignoring calls of a senior officer
weighed heavily on her.
c) He also spoke inappropriately about the physical needs of
human beings, knowing that she was living alone at that time.
His statements relating to the need of humans for physical
closeness seemed very much like advances made to her.
d) In April, 2020, during the Covid lockdown he asked her to ac
company him to a Bar in Crown Plaza adding that he knew the
owner of the hotel and hence it would be specially opened just
for the two of them.
e) Since she had blocked his mobile number after this conversation
where she had not accepted his invitation, the next day, he
called her on the landline.
f) Then, in December, 2021, she ran into him outside the lift and
along with her batchmate, who was with her, she was asked to
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come to his room where he made series of sarcastic comments.
According to her, even her colleague noted both her discomfit
ure and his sarcastic attitude.
g) The appellant was stated to have been speaking to various per
sons about R4 disparagingly, also stating that he wanted to find
some material that he could use against her in a professional ca
pacity.
h) Her complaint was filed on 24.05.2022. Though the last person
al interaction with R4 is mentioned as December, 2021, she
does state that there were occasions even thereafter when his
harassment of her continued by way of speaking insultingly
about her to colleagues about which she specifically mentions in
paragraphs 8 and 9 of her complaint.
i) In February, 2022, a memo had been issued to her for alleged
lapses in processing a Declaration made by a third party in re
gard to the SVLDRS Scheme.
24. Thus, though the last personal interaction may have been six
months prior to the date of her complaint, the narration in her complaint
in regard to alleged instances of harassment even thereafter, allege that
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the harassment continued behind her back with disparaging comments to
colleagues about her both personally and professionally.
25. The tenor of the allegations summarised above, prima facie,
indicate that the allegations commence from December 2020 and
continued even thereafter till february 2022. In light of the aforesaid, we
are of the considered view that 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, 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. This issue is decided accordingly.
26. The second issue raised by the Appellant relates to the selection
of officers to constitute the ICC. Any one of the officers to whom the
complaint had been marked could well have referred the matter for
further action as per the Act and Rules. In this case, R3, the Principal
Commissioner, had constituted an ICC with the following five persons
under Standing Order No.3/2022 dated 27.05.2022. The ICC was to be
headed by Ms.Prachi Saroop, Member, Principal Additional Director
General, Directorate General of Vigilance, West Zonal Unit, Mumbai.
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Sl.No. Name and Designation ICC Role
1. Ms. Manasa Gangotri Kata, Additional Member
Commissioner
2. Ms.D.Ramyaa, Deputy Commissioner Member
3. Ms.S.Vadiukarasi, Deputy Member
Commissioner
4. Ms.Anandalakshmi Ganeshram, Member
Superintendent
5. Ms.M.Sheela, Advocate Member
27. A copy of the complaint and intimation of the Constitution of
the Committee was issued to the appellant on 04.06.2022, upon receipt of
which, on 07.06.2022, he denies all the allegations. He also objects to the
inclusion of the member at serial number 1 as part of the Committee,
since both that member and Mr.Ganta Ravindranath, Principal
Commissioner were part of the Designated Committee, involved in the
processing of SVLDRS applications in that Commissionerate including
the application of the assessee, Heaven Engineering.
28. The appellant had also requested that any other member
recommended by Mr.Ganta Ravindranath may be excluded from the
purview of the ICC. That being an interim reply, the appellant has sought
time to file a detailed reply. Ultimately, a detailed reply had been filed
by the appellant, changes had been made to the constitution of the
Committee by excluding the member at serial number 1 and proceedings
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had been commenced by the ICC.
29. 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.
30. That apart, there is a larger reason why we believe that the
constitution of the ICC is tainted. In the course of the hearing, we were
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.
31. The appellant had challenged the notice of hearing dated
04.06.2022 issued by the ICC. Between the period when the Writ Petition
was instituted on 08.07.2022 and ultimately dismissed on 09.09.2022, it
transpires that an inquiry had been completed by the ICC and a report
also issued by them. The report had been issued prior to the date of
disposal of the Writ Petition, which fact was not brought to the notice of
the Writ Court. A copy of the Report dated 30.07.2022 produced before
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us, reveals that R4/complainant and witnesses have been examined and
conclusions arrived at, which fact had been totally suppressed thus far by
the official respondents.
32. The Writ Court, has been led to believe that the complaint was
still pending investigation. Ms.Manasa Gangotri Kata and Ms.M.Sheela
are part of the ICC that disposes the matter in such haste. The insistence
on the same constitution of the ICC, despite requests of the appellant for
re-constitution citing certain compelling reasons, is, in our considered
view, inappropriate.
33. The procedure followed only serves to establish the unseemly
haste with which the proceedings had been conducted. We are given to
understand that in one of the hearings before the writ Court, the official
Respondents had undertaken not to proceed further in the matter despite
which the ICC has gone ahead to conclude the hearing and issue a
Report. This fact was not disclosed even when the matter had come up
before the Division Bench and stay granted.
34. We seriously deprecate the conduct of the official Respondents
in the Appeal as being contumacious, to say the least. It was incumbent
upon the Officials Respondents to have reported the fact that the inquiry
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had been completed and Report dated 30.07.2022 issued, in a way
frustrating the very filing of the writ petition and now, the Appeal.
35. At the least, it has served to demonstrate to us that the Official
Respondents cannot be expected to follow proper procedure unless
compelled to do so, for the purpose of which we issue the following
directions:
(i) The ICC that has issued Report dated 30.07.2022 stands
disbanded and that Inquiry report shall be eschewed.
(ii) Complaint of R4 dated 22.05.2022 stands restored to the file
of the Principal Commissioner for disposal afresh.
(iii) An Internal Complaints Committee be set up de novo,
wherein none of the earlier committee members shall be
included. It is to be ensured that the members of the
Committee are selected in line with the provisions of the Act
and Rules as prescribed in this regard.
(iv) The Committee shall be constituted within a period of one
week from date of uploading of the order, and the first
hearing before the Committee shall be scheduled with a
week from its constitution.
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(v) Notices of hearing shall be issued well in advance to the
parties, including R4, witnesses, as well as any others that
the Committee deems necessary including the Appellant at
their discretion, calling upon them to appear for the hearings
before the Committee.
(vi) The ICC shall be provided with due assistance by the
authorities, including specifically the DOT, in regard to
verification of call records as this is a critical feature of the
complaint and it is imperative that the allegations relating to
phone calls having been made at uncivil hours be inquired
into and findings rendered.
(vii) After due hearing, an inquiry report shall be issued within
two weeks from the last date of hearing of the matter by the
Committee.
(viii) The entire exercise shall be completed within a period of
three months from the date of first hearing.
36. The fourth, and last issue as far as the complaint under POSH
is concerned, is the procedure to be followed. Our attention has been
taken in detail through the following:
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(i) Central Civil Services (Classification, Control and Appeal)
Rules 1965 (in short CCS(CCA) Rules)
(ii) Guidelines issued under the POSH Act
(iii) Office Memoranda issued by the Ministry of Personnel, Public
Grievances and Pensions, dated 16.07.2015
(iv)Handbook on Sexual Harassment of Women at Workplace
issued by the Ministry of Women and Child Development in 2015
(v) Office Memorandum on Central Civil Services (Classification,
Control and Appeal) Rules 1965
(vi) Guidelines regarding prevention of sexual harassment at work
place dated 02.08.2016
(vii) Office Memorandum on prevention of sexual harassment of
working woman at work place dated 04.11.2022
37. Though all aspects of sexual harassment at workplace have
been comprehensively taken note of in these guidelines, the dictates in
those guidelines would remain merely academic, unless such matters are
addressed sensitively and purposively to give effect to the provisions of
the Act and the Rules.
38. In Medha Kotwal Lele3, 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.
39. As regards private employers, steps should be taken to include
such prohibitions and mechanisms to redress the same in the Standing
3 Foot Note Infra (62)
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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.
40. 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.
41. In the record of proceedings dated 26.04.2004, the Court
directed as follows: ‘2….Complaints Committee as envisaged by the
Supreme Court in its judgment in Vishaka V. State of Rajasthan ((1997) 6
SCC 241) at p.253, will be deemed to be an inquiry authority for the
purposes of the Central Civil Services (Conduct) Rules, 1964 (hereinafter
called “the CCS Rules”) and the report of the Complaints Committee
shall be deemed to be an inquiry report under the CCS Rules. Thereafter
the disciplinary authority will act on the report in accordance with the
Rules.’
42. In the final judgment of Medha Kotwal Lele V Union of India
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and Others4, where the compliance report of various States/Union
Territories have been recorded, the Court records that the State of Tamil
Nadu has carried out amendments in the Civil Services Conduct Rules.
However, no amendments have been made in the Standing Orders so far.
43. As far as the CCC(CCA) Rules are concerned, Rule 14 under
Part VI deals with the procedure for imposing major penalties, and the
Rule, to the extent to which it is relevant, reads as follows:
14. Procedure for imposing major penalties
(1) No order imposing any of the penalties specified in clauses
(v) to (ix) of Rule 11 shall be made except after an inquiry
held, as far as may be, in the manner provided in this rule and
rule 15, or in the manner provided by the Public Servants
(Inquiries) Act, 1850 (37 of 1850), where such inquiry is held
under that Act.
(2) Whenever the disciplinary authority is of the opinion that
there are grounds for inquiring into the truth of any
imputation of misconduct or misbehaviour against a
Government servant, it may itself inquire into, or appoint
under this rule or under the provisions of the Public Servants
(Inquiries) Act, 1850, as the case may be, an authority to
inquire into the truth thereof.
Provided that where there is a complaint of sexual
harassment within the meaning of rule 3 C of the Central
Civil Services (Conduct) Rules, 1964, the Complaints
Committee established in each Ministry or Department or
Office for inquiring into such complaints, shall be deemed to
be the inquiring authority appointed by the disciplinary
authority for the purpose of these rules and the Complaints
Committee shall hold, if separate procedure has not been
prescribed for the Complaints Committee for holding the
4 (2013) 1 SCC 297
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inquiry into the complaints of sexual harassment, the inquiry
as far as practicable in accordance with the procedure laid
down in these rules.
……………
(3) Where it is proposed to hold an inquiry against a
Government servant under this rule and rule 15, the
disciplinary authority shall draw up or cause to be drawn up-
(i) the substance of the imputations of misconduct or
misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or
misbehaviour in support of each article of charge, which shall
contain-
(a) a statement of all relevant facts including any admission
or confession made by the Government servant;
(b) a list of documents by which, and a list of witnesses by
whom, the articles of charge are proposed to be sustained.
(4) (a) The Disciplinary Authority shall deliver or cause to be
delivered to the Government servant a copy of the articles of
charge, the statement of the imputations of misconduct or
misbehaviour and a list of documents and witnesses by which
each article or charges is proposed to be sustained.
(b) On receipt of the articles of charge, the Government
servant shall be required to submit his written statement of
defence, if he so desires, and also state whether he desires to
be heard in person, within a period of fifteen days, which may
be further extended for a period not exceeding fifteen days at
a time for reasons to be recorded in writing by the
Disciplinary Authority or any other Authority authorised by
the Disciplinary Authority on his behalf: Provided that under
no circumstances, the extension of time for filing written
statement of defence shall exceed forty-five days from the date
of receipt of articles of charge.
5 (a) On receipt of the written statement of defence, the
disciplinary authority may itself inquire into such of the
articles of charge as are not admitted, or, if it considers it
necessary so to do, appoint, under sub-rule (2), an inquiring
authority for the purpose, and where all the articles of charge
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have been admitted by the Government servant in his written
statement of defence, the disciplinary authority shall record
its findings on each charge after taking such evidence as it
may think fit and shall act in the manner laid down in rule 15.
(b) If no written statement of defence is submitted by the
Government servant, the disciplinary authority may itself
inquire into the articles of charge, or may, if it considers it
necessary to do so, appoint, under subrule (2), an inquiring
authority for the purpose.
(c) Where the disciplinary authority itself inquires into any
article of charge or appoints an inquiring authority for
holding an inquiry into such charge, it may, by an order,
appoint a Government servant or a legal practitioner, to be
known as the “Presenting Officer” to present on its behalf the
case in support of the articles of charge.
………..
(6) The disciplinary authority shall, where it is not the
inquiring authority, forward to the inquiring authority-
(i) a copy of the articles of charge and the statement of the
imputations of misconduct or misbehaviour;
(ii) a copy of the written statement of the defence, if any,
submitted by the Government servant;
(iii) a copy of the statements of witnesses, if any, referred to in
sub-rule (3);
(iv) evidence proving the delivery of the documents referred to
in sub-rule (3) to the Government servant; and
(v) a copy of the order appointing the “Presenting Officer”.
(7) The Government servant shall appear in person before
the inquiring authority on such day and at such time within
ten working days from the date of receipt by the inquiring
authority of the articles of charge and the statement of the
imputations of misconduct or misbehaviour, as the inquiring
authority may, by notice in writing, specify, in this behalf, or
within such further time, not exceeding ten days, as the
inquiring authority may allow.
(8) (a) The Government servant may take the assistance of
any other Government servant posted in any office either at
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his headquarters or at the place where the inquiry is held, to
present the case on his behalf, but may not engage a legal
practitioner for the purpose, unless the Presenting Officer
appointed by the disciplinary authority is a legal practitioner,
or, the disciplinary authority, having regard to the
circumstances of the case, so permits;
Provided that the Government servant may take the assistance
of any other Government servant posted at any other station,
if the inquiring authority having regard to the circumstances
of the case, and for reasons to be recorded in writing, so
permits.
Note : The Government servant shall not take the assistance
of any other Government servant who has three pending
disciplinary cases on hand in which he has to give assistance.
(b) The Government servant may also take the assistance of a
retired Government servant to present the case on his behalf,
subject to such conditions as may be specified by the
President from time to time by general or special order in this
behalf.
44. Office Memoranda and Instructions have also been issued
setting out Guidelines for the procedure to be followed in the processing
of sexual harassment complaints. Under the following Instruction, the
Chairpersons of Internal Complaint Committees have been asked to
ensure their familiarity with the CCS (CCA) Rules as well as the Guide
prepared for that purpose by the DoPT:
F.No.11013/2/2014-Estt (A-III)
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel & Training
****
North Block, New Delhi26/74
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W.A.No.2388 of 2022 & W.P.No.11457 of 2023Dated July 16th, 2015
OFFICE MEMORANDUM
Subject: Steps for conducting inquiry in case of allegation
of Sexual Harassment
Undersigned is directed to say that during the
meeting of the Chairpersons of Complaints Committees with
Secretary (Personnel) on the 16th April, 2015 it was
suggested that the Department of Personnel and Training
may prepare a step guide for conduct of inquiry in
complaint cases of sexual harassment. Rule 14(2) of the
Central Civil Services (Classification, Control and Appeal)
Rules, 1965 lays down that the Complaints Committee
established in each Ministry or Department for inquiring
into complains of sexual harassment shall hold such inquiry
as far as practicable in accordance with the procedure lain
down in these Rules.
2. The annexed guide on “Steps for Conduct of Inquiry
in complaints of Sexual Harassment” is intended to give the
procedure as prescribed in the rules/instructions. This is,
however, not intended as a substitute for reference to the
Rules and instructions. Members of the Complaints
Committees and others who are required to deal with such
inquiries should acquaint themselves with Central Civil
Services (Classification, Control and Appeal) Rules, 1965,
and instructions issued thereunder.
(Mukesh Chaturvedi)
Director (E)’
45. 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
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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.
46. Office Memorandum bearing No.DOPT-1667566576557 dated
04.11.2022 sets out the detailed procedure to be followed in cases of
allegations of sexual harassment, integrating the relevant provisions of
the CCA(CCS) Rules as well, and splitting the inquiry into two stages.
The relevant parts are extracted below:
(C) INQUIRY INTO COMPLAINT [FIRST STAGE] The
Complaints Committees may act on complaints of sexual
harassment when they receive them directly or through
administrative authorities etc, or when they take cognizance
of the same suo-moto. As per Section 9 (1) of the Act, the
aggrieved woman or complainant is required to make a
complaint within three months of the incident and in case
there has been a series of incidents, three months of the last
incident. The Complaints Committee may however extend the
time limit for reasons to be recorded in writing, if it is
satisfied that the circumstances were such which prevented
the complainant from filing a complaint within the stipulated
period.
As mentioned above, the complaints of sexual harassment are
required to be handled by Complaints Committee. On receipt
of a complaint, facts of the allegation are required to be
verified. This is called preliminary inquiry/fact finding
inquiry or investigation. The Complaints Committee conducts
the investigation. They may then try to ascertain the truth of
the allegations by collecting the documentary evidence as
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well as recording statements of any possible witnesses
including the complainant. If it becomes necessary to issue a
Charge Sheet, disciplinary authority relies on the
investigation for drafting the imputations, as well as for
evidence by which the charges are to be proved. Therefore
this is a very important part of the investigation.
(D) INQUIRY UNDER CCS (CCA) RULES, 1965
[SECOND STAGE]
Dual Role
In the light of the Proviso to the Rule 14 (2) mentioned
above, the Complaints Committee would normally be
involved at two stages. The first stage is investigation already
discussed in the preceding para. The second stage is when
they act as Inquiring Authority. It is necessary that the two
roles are clearly understood and the inquiry is conducted as
far as practicable as per Rule 14 of CCS (CCA) Rules, 1965.
Failure to observe the procedure may result in the inquiry
getting vitiated.
As the Complaints Committees also act as Inquiring
Authority in terms of Rule 14(2) mentioned above, care has
to be taken that at the investigation stage that impartiality is
maintained. Any failure on this account may invite
allegations of bias when conducting the inquiry and may
result in the inquiry getting vitiated. As per the instructions,
when allegations of bias are received against an Inquiring
Authority, such Inquiring Authority is required to stay the
inquiry till the Disciplinary Authority takes a decision on the
allegations of bias. Further, if allegations of bias are
established against one member of the Committee on this
basis, that Committee may not be allowed to conduct the
inquiry.
In view of the above, the Complaints Committee when
investigating the allegations should make recommendations
on whether there is a prima facie substance in the allegations
which calls for conducting a formal inquiry. They should
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avoid making any judgmental recommendations or
expressing views which may be construed to have prejudiced
their views while conducting such inquiry.
47. The decision to charge sheet and conduct of inquiry by the
Disciplinary Authority is as per the procedure in the OM extracted below:
Decision to issue Charge sheet. and conducting Inquiry
On receipt of the Investigation Report, the Disciplinary
Authority should examine the report with a view to see as to
whether a formal Charge Sheet needs to be issued to the
Charged Officer. As per Rule 14(3), Charge Sheet is to be
drawn by or on behalf of the Disciplinary Authority. In case
the Disciplinary Authority decides on that course, the
Charged Officer should be given an opportunity of replying
to the Charge sheet. As per Rule 14 (5), a decision on
conducting the inquiry has to be taken after consideration of
the reply of the charged officer. If the Charged Officer
admits the charges clearly and unconditionally, there will be
no need for a formal inquiry against him and further action
may be taken as per Rule 15 of the CCS (CCA) Rules.
48. The Supreme Court in the case of Nisha Priya Bhatia5 has
taken note of the position that a co-ordinated approach is the order of the
day when dealing with sexual harassment complaints as against a Central
Government employee stating so, at paragraph 97 thereof, extracted
below:
97. Be that as it may, in our opinion, the petitioner seems
to have confused two separate inquiries conducted under
two separate dispensations as one cohesive process. The
legal machinery to deal with the complaints of sexual
5Foot Note Infra (70)30/74
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W.A.No.2388 of 2022 & W.P.No.11457 of 2023harasment at workplace is well delineated by the
enactment of the Sexual Harassment of Women at
Workplace Act, 2013 (hereinafter “the 2013 Act”) and the
Rules framed thereunder. There can be no departure
whatsoever from the procedure prescribed under the 2013
Act and the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Rules, 2013 (for
short “the 2013 Rules”), either in matters of complaint or
of inquiry thereunder. The sanctity of such procedure
stands undisputed. The inquiry under the 2013 Act is a
separate inquiry of a fact-finding nature. Post the conduct
of a fact-finding inquiry under the 2013 Act, the matter
goes before the department for a departmental inquiry
under the relevant departmental rules [the CCS (CCA)
Rules in the present case] and accordingly, action follows.
The said departmental inquiry is in the nature of an in-
house mechanism wherein the participants are restricted
and concerns of locus are strict and precise. The ambit of
such inquiry is strictly confined between the delinquent
employee and the department concerned having due
regard to confidentiality of the procedure. The two
inquiries cannot be mixed up with each other and similar
procedural standards cannot be prescribed for both. In
matters of departmental enquiries, prosecution, penalties,
proceedings, action on inquiry report, appeals, etc. in
connection with the conduct of the government servants,
the CCS (CCA) Rules operate as a self-contained code for
any departmental action and unless an existing rule is
challenged before this Court on permissible grounds, we
think, it is unnecessary for this Court to dilate any further.
98. The notifications issued by the respondent in the form
of OMs are in the nature of departmental instructions and
are intended to supplement the 2013 Act and Rules framed
thereunder. Such notifications do not operate in
derogation of the 2013 Act, rather, they act in furtherance
of the same. The OM dated 2-8-2016, for instance, reads
thus:
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W.A.No.2388 of 2022 & W.P.No.11457 of 2023“3. In accordance with Section 18(1) of the SHWW (PPR)
Act, 2013, it has been decided that in all cases of
allegation of sexual harassment, the following procedure
may be adopted….”
99. A bare perusal of the aforequoted OM makes it amply
clear that the said notification furthers the procedure
predicated under the 2013 Act and do not, in any manner,
reduce the vigour thereof.
49. Read together and in harmony, the procedure under the POSH
Act as well as the CCA(CCS) Rules contemplate a three-pronged
procedure for dealing with, sexual harassment complaints.
50. Firstly, the first proviso under Rule 14(2) has been inserted
vide Government Instructions of the Department of Personnel and
Training dated 01.07.2004, gazetted on 10.07.2004. It states that where
there is a complaint of sexual harassment within the meaning of Rule 3(c)
of the Central Civil Services (Conduct) Rules, 1964, the Complaints
Committee established in each Ministry, Department or office for
inquiring into such complaints, shall be deemed to be the inquiring
authority appointed by the disciplinary authority for the purpose of the
Rules. The procedure followed by the Complaints Committee shall, as far
as practical be in accordance with the procedure set out under these
Rules.
51. Upon receipt of a complaint, the Complaints Committee or
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ICC, would conduct a broad, fact-finding investigation, the purpose of
which is to ascertain prima facie, if the allegations of sexual harassment
are plausible. As the memorandum states, documentary evidence may be
collected, statements may be recorded, including those of the complaint
and prima facie conclusions be drawn in regard to the veracity or
otherwise of the allegations made in the complaint.
52. The rival contentions advanced are, while the appellant would
insist on a full hearing before the ICC, and being furnished with all
materials collected by the Complaints Committee even at this stage, R4
would object to the necessity for such a full-fledged inquiry, pointing that
it is only a preliminary investigation, one of marshalling of facts, at this
stage.
53. The appellant would specifically rely on the narration in Office
Memorandum (OM) dated 04.11.2022 to the effect that ‘If it becomes
necessary to issue a Charge Sheet, disciplinary authority relies on the
investigation for drafting the imputations, as well as for evidence by
which the charges are to be proved. Therefore this is a very important
part of the investigation.’.
54. The OM then contemplates that this preliminary report
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containing prima facie conclusions is forwarded to the disciplinary
authority, who would examine the same with a view to ascertaining
whether a formal charge sheet needs to be issued to the charged officer,
i.e., the appellant in this case.
55. If the disciplinary authority decides that that would be the right
course of action, the officer is to be given the liberty of replying to the
charge sheet and thereafter, in line with Rule 14(5), a decision on
proceeding with the inquiry will be taken after considering the response
of the charged officer.
56. Thus, at the stage of Rule 14(3), the entirety of the documents
on the basis of which the primary findings of the investigation report
would have been made by the Complaints Committee, would be
forwarded to the charged officer along with the articles of charge, a
statement of the imputations of misconduct or misbehavior and a list of
documents and witnesses, by which each article or charge is proposed to
be sustained.
57. A written defence of the charged officer would be sought and
matters would proceed thereafter in terms of Rule 14(5). An inquiry will
be conducted by the disciplinary authority and where the disciplinary
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authority is not itself the enquiring authority, an inquiring authority shall
be named. The composition of this Committee, as per the first proviso to
Sub-Rule (2) of Rule 14, shall be that of the Complaints Committee
established in that Department.
58. It is for this reason that, in OM dated 04.11.2022, it has been
cautioned that the Complaints Committee which embarked on the
primary fact finding exercise and the inquiry committee constituted under
Rule 14(5)(a) understand the dual nature of the roles that the Committee
would play, and the need to be conscious to eliminate bias.
59. To summarize, the Complaints Committee which we have now
directed to be constituted at paragraph 38 of the Order, will first wear the
hat of a Complaints Committee/ICC under the POSH Act and carry out a
primary fact finding inquiry, gathering materials, documentary evidence
and record statements of witnesses including the complainant.
60. The OM does not specifically refer to the recording of
statement of the officer as against whom complaint has been made but we
leave it to the discretion of the Committee to be formed, as to whether
they would prefer to record his statement as well. We hasten to add that
no direction has been given in this regard and it is for the ICC to decide
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on this aspect.
61. As far as the apprehensions expressed by the appellant in
regard to the last four lines which we have italicized at paragraph 53
above, we are of the view that the apprehension is misplaced. No doubt,
the exercise of fact-finding is an important part of the exercise in the
procedure for dealing with a sexual harassment complaint.
62. However, the marshalling of facts at the preliminary stage is
only to enable the Complaints Committee/ICC to decide whether, prima
facie, the complaint by R4 comes within the contours of a sexual
harassment complaint under the Act and Rules. While being an important
part of the investigation, it does not bind any of the authorities in the
subsequent stages in the procedure.
63. In fact, the very reason why the OM has cautioned against bias
is to ensure that, in the event the composition of the Complaints
Committee/ICC verifying the complaint at the preliminary stage happens
to be the same as the inquiry committee, should one be appointed by the
disciplinary authority, then, the inquiry committee should approach the
mater afresh and de novo, and take into account the response of the
charged officer and any material that he may produce.
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64. They must specifically bear in mind the fact that the charged
officer may or may not have been part of the proceedings before the
Complaints Committee/ICC based on whether he had been specifically
summoned by that Committee at their discretion, and hence he would
have to be allowed full opportunity to present his case before the inquiry
committee if such a situation arises. The matter will then proceed in
accordance with the procedure under the CCS(CCA) Rules and
applicable OMs.
65. This then is our decision in regard to the procedure to be
followed and the ICC, as re-constituted in light with the directions at
paragraph 35 shall continue with the inquiry from the stage of
examination of witnesses, hear such parties as they believe necessary for
the case, and issue the Report.
66. We make it clear that the statements of the witnesses already on
record may be taken into account by the new ICC at their discretion. If
the ICC believes that it is desirable or prudent that the witnesses be
examined afresh, they may proceed in that direction.
67. Thus, while the Report shall be eschewed, we are of the
considered view that the statements of the complainant and witnesses
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already recorded may stay on the record for consideration by the new ICC
at their discretion, and further examination of those witnesses or of new
witnesses, the complainant and the appellant may be undertaken by the
ICC, again, at their discretion.
68. 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.
69. In answering the issues as above, we have taken note of the
following citations made by the parties:
Citations of the Appellant in W.A.No.2388 of 2022
1.M/s.Padmavathi Srinivasan V. The Joint Commissioner of GST &
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W.A.No.2388 of 2022 & W.P.No.11457 of 2023Central Excise6
2.M/s.S.B.Homes V. The Commissioner of CGST & C.Ex., Chennai South
GST Commissionerate and others7
3.Radha Krishnan Industries v. State of Himachal Pradesh and Others8
4.Dr.R.Rajendran v. Board of Governors, Rep. by the Chairman,
National Institute of Technical Teachers Training and Research
(NITTTR), Taramani, Chennai-113 and others9
5.Dr.P.Govindaraju v. The Manonmaniam Sundaranar University, Rep.
by its Registrar, Abishekapatti, Tirunelveli-627 01210
6.Manonmaniam Sundaranar University, Represented by its Registrar,
Abishekapatti, Tirunelveli-627 012 v. Dr.P.Govindaraju11
7.Union of India and others v. Smt.Rema Srinivasan Iyengar, Assistant
Registrar of Trade Marks & GI, Intellectual Property Building, GST
Road, Guindy, Chennai – 600 032 and others12
8.Union of India and others v. V.S.Jaitha, Senior Accountant, Office of
the Accountant General (A&E), Kerala, Thiruvananthapuram and
others13
9.Mary Rajasekaran v. University of Madras, Rep. by its Registrar,
Chennai-600 00514
11.Ruchika Singh Chhabra v. M/s.Air France India and Another16
12.Aya Aubkhan Noorkhan Pathan v. State of Maharashtra and Others17
13.Dr.K.Karnamaharajan v. The Registrar, Madurai Kamaraj
University, Palkalai Nagar, Madurai – 625 021 and others18
14.Vivek Tyagi v. State of Haryana and others19
15.AIR India Limited, Represented By Its Chairman and Managing
6 W.P.No.11797 of 2021 dated 23.02.2024
7 W.P.Nos.24731 of 2021 etc. batch dated 09.02.2022
8 (2021) 6 SCC 774
9 WP.No.15247 of 20211 dated 12.04.2016
10 WP(MD)No.979 of 2019 dated 24.01.2020
11 WA(MD)No.428 of 2020 dated 20.04.2022
12 WP.Nos.10689, 24290 & 4339 of 2019 dated 17.02.2020
13 2016 SCC OnLine Ker 16750
14 WP.No.10364 of 2016 dated 25.08.2021
15 (2020) 19 SCC 46
16 2018 SCC OnLine Del 9340
17 (2013) 4 SCC 465
18 WP(MD)No.19440 of 2019 dated 24.01.2020
19 CWP-32707-2019 (O&M) dated 22.03.202139/74
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W.A.No.2388 of 2022 & W.P.No.11457 of 2023Director and Others v. L.S.Sibu and Others20
16.Union of India, rep. by the Post Master General, Central Region
[TN], Tiruchirappalli and Others v. The Registrar, Central
Administrative Tribunal, Chennai 600 104.21
17.Medha Kotwal Lele and others v. Union of India and others22
18.Dr.Vijayakumaran C.P.V. v. Central University of Kerala and
Others23
19.Mohd. Mustafa v. Union of India & Others24
21.Chairman-cum-Managing Director, Coal India Limited and Others v.
Ananta Saha and Others26
23.Abhay Jain v. High Court of Judicature for Rajasthan and Another28
24.Bharat v. State of Maharashtra, Through the Police Station and An
other29
27.Zunjarrao Bhikaji Nagarkar v. Union of India and Others32
28.Government of Tamil Nadu, Rep. by Secretary to Government, Envir
onment and Forests Department, Fort St. George, Chennai-9. and others
v. M.Subramanian33
31. Mahamood Ali & Ors v State of U.P. & Ors36
20 2018 SCC OnLine Ker 13878
21 WP.No.32453 of 2019 dated 20.11.2019
22 WP(Criminal)Nos.173-177 of 1999 dated 19.10.2012
23 (2020) 12 SCC 426
24 Civil Appeal No.6905 of 2021 dated 16.11.2021
25 (2009) 8 SCC 617
26 (2011) 5 SCC 142
27 SLP(C)Nos.10479-10481/2020 dated 02.02.2021
28 2022 SCC OnLine SC 319
29 2019 SCC OnLine Bom 1602
30 (2009) 12 SCC 78
31 (2013) 6 SCC 515
32 (1999) 7 SCC 409
33 W.A.No.587 of 2008 dated 03.07.2008
34 Appeal (Crl.)No.179 of 2008 dated 24.01.2008
35 Crl.Appeal No. 1759 of 2022 dated 10.10.2022
36 2023 INSC 68440/74
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33. Shri Debdulal Maity v National Insurance Co., Ltd.,38
Citations of R4 in W.A.No.2388 of 2022
1.Biecco Lawrie Limited and Another v. State of West Bengal and
Another39
2.National Institute of Technology v. U.dinakar and Another40
8.R.Mohanakrishnan v. Deputy Inspector General of Police and Others46
10.Dr.P.S.Malik v. High Court of Delhi and Another48
16.Chanan Singh v. Registrar, Co-op. Societies, Punjab and Others54
17.RT.Rev.B.P.Sugandhar Bishop in Medak v. D.Dorothy Daya Sheela
37 Civil Writ Petition No. 7257 of 2021 dt 30.08.2022 (Rajasthan HC)
38 W.P.No. 459 of 2014 dated 07.08.2014 (Calcutta HC)
39 (2009) 10 SCC 32
40 (2014) 13 SCC 180
41 (2019) 2 SCC 703
42 (2022) 16 SCC 456
43 2023 SCC OnLine SC 1423
44 2023 SCC OnLine Del 3764
45 (2024) 1 SCC 632
46 2024 SCC OnLine Mad 2123
47 1963 SCC OnLine SC 42
48 (2020) 19 SCC 714
49 2020 SCC OnLine Del 1618
50 (1993) 2 SCC 49
51 (2008) 12 SCC 331
52 1971 (1) SCC 774
53 (1973) 2 SCC 406
54 (1976) 3 SCC 36141/74
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W.A.No.2388 of 2022 & W.P.No.11457 of 2023Ebeneser55
20.The Research Scholar v. Research Guide/Professor and others58
22.Union of India and others v. Deep Chand Pandey and Another60
23.Himachal Pradesh State Electricity Board, Shimla and Others v.
Tirath Raj and Others61
24.State of H.P. and Another v. Pawan Kumar Rajput and Others62
25M.Ramasubramani v. The Central Administrative Tribunal, rep. by its
Registrar, Madras Bench, High Court Buildings, Chennai-600 104 and
others63
26.Medha Kotwal Lele and Others v. Union of India and Others64
29.M.Kavya & another v. The Chairman, University Grants Commission,
New Delhi and others67
34.Dr.Punita K.Sodhi v. Union of India and Ors.72
55 (1996) 4 SCC 406
56 (1997) 6 SCC 241
57 2024 SCC OnLine SC 1943
58 WA(MD)Nos.413 & 414 of 2020 dated 04.12.2024
59 (1997) 3 SCC 261
60 (1992) 4 SCC 432
61 (1995) 5 SCC 678
62 (2006) 9 SCC 161
63 2013 SCC OnLine Mad 3010
64 (2013) 1 SCC 311
65 2022 SCC OnLine SC 1002
66 (1999) 1 SCC 759
67 2015-1-L.W. 835
68 2017 SCC OnLine Del 9935
69 (2020) 3 SCC 86
70 (2020) 13 SCC 56
71 (2021) 16 SCC 179
72 WP(C)No.367/2009 dated 09.09.201042/74
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W.A.No.2388 of 2022 & W.P.No.11457 of 2023Part B – SVLDRS Declaration of M/s Heaven Engineering
70. One thing remains. The parties have advanced very detailed
and lengthy arguments on the propriety or otherwise of the processing of
the Declaration of the assessee, M/s Heaven Engineering/Sundaram
Sathishkumar by R4. R4 was not part of the Designated Committee,
responsible for the final processing and acceptance of the Declarations.
She was however part of the team of the Designated Committee,
entrusted with certain preliminary functions.
71. The entire sequence in regard to this issue, has been the subject
matter of narration, discussion and conclusion in W.A.No.602 of 2025,
decided by a co-ordinate Bench of this Court of which one of us, Anita
Sumanth J., was part. That writ appeal arose from an order dated
13.12.2024 passed in W.P.No. 11098 of 2024 where the assessee, M/s
Heaven Engineering/Sundaram Sathishkumar had challenged a show
cause notice dated 06.02.2020 proposing a demand in the region of
Rupees nine crores (approx.).
72. The show cause notice had been issued by the Department after
receipt of the SVLDRS Declaration and the stand of the assessee was that
no proceedings could be initiated after the filing of the Declaration opting
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for the Amnesty Scheme. However, the Department defended the show
cause notice on the ground that the Declaration had contained a material
defect which vitiated it, and rendered it otiose. The writ petition had been
allowed as against which the Department filed a writ appeal in
W.A.No.602 of 2025.
73. In fact, even at the time of hearing of these matters, we had
indicated that it would be appropriate that that writ appeal be heard along
with the present matters, but as there was no move for consolidation, we
proceeded to hear these matters and reserved the same for judgement. As
per the roster assigned, that writ appeal happened to be listed before the
co-ordinate Bench wherein one of us is part, and has been decided by way
of the order below, pronounced simultaneously today.
74. We extract the operative portions of that order in the interests
of a full narration, and as the issue relating to the SVLDRS Declaration
of M/s Heaven Engineering/Sathish Sundaram and the role played by R4
therein, has been answered in that matter. The order passed in that writ
appeal, W.A.No. 602 of 2025, may be read as part and parcel of the
present order and we extract below operative portions in the interests of a
full narration:
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16. The Sabka Viswas Legacy Disputes Resolution Scheme, 2019
had been framed under Finance (No.2) Act 2019 for settlement of tax
arrears. The crux of their submissions, and what is germane for the
purposes of this writ Appeal, would be Section 125 of the Scheme which
prescribes eligibility of persons to make a Declaration under the Scheme.
17. Section 125 states that all persons shall be eligible to make a
Declaration under the Scheme barring, in clause (e), those who have
been subjected to an inquiry or investigation or audit and the amount of
duty involved in the inquiry/investigation/audit has not been quantified
on or before 30.06.2019 and in clause (f), a person making a voluntary
disclosure after being subjected to any inquiry or investigation or audit.
18. The Declaration filed by the respondent undoubtedly contains
an erroneous disclosure in relation to the selection of category. The
categories available for selection are (i) Arrears (ii) Litigation (iii)
Investigation, inquiry or Audit and (iv) Voluntary Disclosure .
19. In the present matter, investigation by the Enforcement and
Compliance Management (ECM) Section, Chennai Outer
Commissionerate has commenced in 2014. Yet another round of
investigation had taken place in 2019 by the same unit and a statement
has also been recorded from the respondent on 09.12.2019 and
04.02.202.
20. Therefore, admittedly, the Declaration falls within the category
of ‘Investigation, inquiry or Audit’. However, the respondent has selected
‘Voluntary Disclosure’ as the category under which the Declaration has
been submitted. By virtue of the said incorrect selection, it is the say of
the Appellants that the method of verification has been different as the
category in which the Declaration is submitted would determine the
mode of verification.
21. According to them, had the Declaration been submitted under
the proper category, disclosing that the respondent had been subject to
Investigation/inquiry/audit, the further processes of issuing Forms 3,
receiving the payment and issuing the Discharge Certificate in Form 4
would not have transpired. They say that the choice of the incorrect
category by the Respondent was deliberate so as to thwart the proper
processes and attain the acceptance of his application.
22. We have carefully considered the rival contentions in this
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undoubtedly, incorrect. The factum of investigation in 2014 and 2019 is
admitted, as statements have also been recorded from the respondent in
the course thereof. Hence it stands to reason that the respondent ought to
have selected the category ‘Investigation, inquiry or Audit’ and the
selection by him of another category which is incorrect amounts to a
material falsehood, to the knowledge of the Respondent.
23. The Circulars relied upon by the Respondent are extracted
below, and do indicate some discussion in regard to this aspect.
Circular No. 1073/06/2019.GX
F. No. 267/78/2019/CX-8-Pt.III
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
Dated, the 29th October, 2019
To
The Principal Chief Commissioners/ Chief Commissioners
(All)
The Principal Directors General/ Directors General (All)
Subject: Sabka Vishwas (Legacy Dispute Resolution)
Scheme, 2019-reg
Dear Madam/Sir,
I am directed to invite your attention to Board’s Circu
lars No. 1071/4/2019-CX dated 27th August, 2019 and
1072/05/2019-CX dated 25th September, 2019 on the Sabka
Vishwas (Legacy Dispute Resolution) Scheme, 2019. Subse
quently, the Board has received further references from field
formations as well as from the trade seeking certain clarifica
tions on the Scheme.
2. The references received by the Board have been exam
ined, and the issues raised therein are clarified in the context
of the various provisions of the Finance (No.2) Act, 2019 and
Rules made there-under, as follows:
…..
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(ii) Under voluntary disclosure category, the Scheme
makes two exclusions: (a) not being subjected to an inquiry or
investigation or audit; or (b) having already filed a return but
not paid the duty declared therein [Section 125(f)(i) and (ii)].
Some of the formations have reported difficulty in verifying
these conditions as the proceedings may have been initiated
by another formation. Though the Scheme provides that no
verification will be carried out in cases of voluntary disclo
sure, they felt that there may still be a requirement to deter
mine the eligibility to avail the Scheme. It is clarified that
such declarations may be accepted without recourse to deter
mination of eligibility as the Scheme provides ample safe
guards for taking suitable action in case of false declaration
of any material particular [Section 129(2)(c)].
……
Yours sincerely,
(NavrajGoyai)
OSD(CX)
***
Circular No. 1072/05/2019-CX.
F. No. 267/78/2019/CX-8-Pt.II?
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
Dated, the 25th September, 2019
To
The Principal Chief Commissioners/ Chief Commissioners
(All)
The Principal Directors General/ Directors General (All)
Subject: Sabka Vishwas (Legacy Dispute Resolution)
Scheme, 2019-reg
Dear Madam/Sir,
I am directed to invite your attention to Board’s Circu
lar No. 1071/4/2019-CX.8 dated 27th August, 2019 on the
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019.
Subsequently, the Board has received references from field
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formations as well as from the trade seeking certain clarifica
tions on the Scheme.
2. The references received by the Board have been exam
ined, and the issues raised therein are clarified in the context
of the various provisions of the Finance (No.2) Act, 2019 and
Rules made thereunder, as follows:
(i) Only the persons who are eligible in terms of Section
125 can file a declaration under the Scheme. The eligibility
conditions are captured in Form SVLDRS-1 (Sr. No. 8). The
system automatically disallows persons who are not eligible
from filing a declaration. However, there is a possibility that
such ineligible persons may still make a declaration by select
ing an incorrect response. For instance, under Sr. No. 8.1, the
person making a declaration has to indicate whether he/she
has been convicted for an offence for the matter for which the
declaration is being made. If, the answer is ‘Yes’, then the
person is ineligible and is not allowed to proceed further by
the system. However, such person is able to file a declaration
if he/she incorrectly indicates ‘No’ as the answer even though
he/she has been convicted. Such declarations are void and do
not merit consideration under the Scheme. Such persons may
be informed of their ineligibility through a letter.
…..
(vi) Section 125(1)(f) bars a person from making voluntary
disclosure after being subjected to an inquiry or investigation
or audit. Further, what constitutes an inquiry or investigation
or audit has also been defined [Sections 121(g) and 121(m)].
A doubt has been expressed as to whether benefit of the
Scheme would be available in cases where documents like
balance sheet, profit and loss account etc. are called for by
department, while quoting authority of Section 14 of the Cen
tral Excise Act, 1944 etc. It is clarified that the Designated
Committee concerned may take a view on merit, taking into
account the facts and circumstances of each case as to
whether the provisions of Section 125(1)(f) are attracted in
such cases.
…….
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Yours sincerely
Sd/-
(Navraj Goyal)
OSD(CX)
24. The Circulars, particularly Circular dated 25.09.2019
reiterates the requirement that the disclosure of information is true, and
there can be no compromise in that regard. The relevant provision makes
it clear that suppression of a material fact would efface the very
Declaration and this is what has been emphasised in the Circulars. We
had sought copies of the records under order dated 08.08.2025 in order
to ascertain the sequence of events, and determine what exactly had
transpired.
25. A compilation dated 11.08.2025 has been filed with extracts
from the file notings. The sequence of dates that unfold are as follows.
Investigation by the ‘Enforcement and Compliance Management Section,
Chennai Outer Commissionerate’ had commenced in 2014 and a
statement of the petitioner had initially been recorded on 07.02.2014.
26. Investigation was re-commenced on 06.12.2019 by the same
agency and statements were recorded by the Investigating Officer on
09.12.2019 and 04.02.2020. The position that investigation was on-going
is thus established and there can be no two opinions in this regard.
27. Section 125 of the Scheme deals with ‘Declaration under
Scheme’ and reads as under:
125. (1) All persons shall be eligible to make a
declaration under this Scheme except the following,
namely:—
(a) who have filed an appeal before the appellate
forum and such appeal has been heard finally on or
before the 30th day of June, 2019;
(b) who have been convicted for any offence
punishable under any provision of the indirect tax
enactment for the matter for which he intends to file
a declaration;
(c) who have been issued a show cause notice,
under indirect tax enactment and the final hearing
has taken place on or before the 30th day of June,
2019;
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(d) who have been issued a show cause notice
under indirect tax enactment for an erroneous
refund or refund;
(e) who have been subjected to an inquiry or
investigation or audit and the amount of duty
involved in the said inquiry or investigation or
audit has not been quantified on or before the
30th day of June, 2019;
(f) a person making a voluntary disclosure,—
(i) after being subjected to any inquiry or
investigation or audit; or
(ii) having filed a return under the indirect tax
enactment, wherein he has indicated an amount
of duty as payable, but has not paid it;
(g) who have filed an application in the Settlement
Commission for settlement of a case;
(h) persons seeking to make declarations with
respect to excisable goods set forth in the Fourth
Schedule to the Central Excise Act, 1944.
(2) A declaration under sub-section (1)shall be
made in such electronic form as may be prescribed.
(emphasis
ours)
28. Hence, the bars, both under Section 125(1)(e) and (f) stand
attracted in this matter, as the investigation, inquiry, audit of the matter
was on-going and no demand has been quantified as on 30.06.2019.
29. Notwithstanding the above bar, on 15.01.2020, an application
under SVLDRS had been filed by the respondent in the name of
‘Sundaram Sathish Kumar’. The registration number under the GST Act
is set out in the application which corresponds with the GSTIN
(registration number) issued to M/s.Heaven Engineering. On 06.02.2020,
show cause notice was issued, impugned in the Writ Petition,
acknowledged by the respondent on the same day.
30. On 20.02.2020, the Commissioner of GST and Central Excise,
Chennai Outer Commissionerate /A2 writes to the Directorate General of
GST Intelligence (DGGI), Chennai Zonal Unit (CZU) asking for certain
particulars in respect of 132 assessees who had made applications under
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the SVLDRS Scheme.
31. On 26.02.2020, the DGGI (CZU) writes to A2 saying that the
DGGI (CZU) has not registered any case or initiated any investigation in
respect of 131 cases barring one case with which we are not concerned.
Hence, they gave a clean chit to the respondent. The same verification as
aforesaid has also been made with the Superintendent (ECM) and
Commissioner of GST and Excise, Audit II Commissionerate which also,
vide letters dated 27.02.2020 and 21.02.2020 respectively give clean
chits to the appellants.
32. On 28.02.2020, the petitioner seeks the documents, based on
which the impugned show cause notice has been issued. There is no
reference to the SVLDRS application filed by him, in that reply. On the
same day, SVLDRS -3 has been issued. On 29.06.2020, the respondent
makes the payment under SVLDRS – 3 Scheme. SVLDRS-4 discharge
certificate was issued to the respondent on 23.07.2020.
33. On 14.08.2020, a second reply had been filed by the
respondent seeking more documents and time to file a reply, incidentally
making reference to the SVLDRS application filed by him on 15.01.2020.
On 27.08.2020, the Assistant Commissioner of GST and Central Excise
(TRC Section) Chennai Outer Commissionerate writes a letter to the
Assistant Commissioner ECM referring to SVLDRS application filed by
the respondent.
34. The officer notes therein, for the first time, that an investigation
was under process against the respondent by the Investigation and
Compliance Management Section, Chennai Outer Commissionerate,
show cause notice dated 06.02.2020 had been issued to the tax payer and
that there was a deliberate misdeclaration in that application.
35. Interestingly, both the addressee and the addressor in that
letter are one and the same, meaning essentially that the same person
who was holding two charges, has written to herself from her capacity as
Assistant Commissioner (ECM) to herself in the capacity as Assistant
Commissioner (TRC Section).
36. The third reply to show cause notice is dated 27.08.2021,
wherein the Respondent seeks withdrawal of the show cause notice on the
ground that the notice had been issued subsequent to the filing of
application under SVLDRS as detailed in his reply.The Department
replied on 07.02.2022 stating that the show cause notice cannot be
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withdrawn, on the reasoning that they have verified the records and
found that the SVLDRS Declaration had been filed by the respondent
when he was under investigation. They also point out that the impugned
show cause notice dated 06.02.2020 had been issued prior to the
payment by the respondent in the month of June, 2020.
37. A personal hearing notice dated 08.03.2022 was thereafter
issued calling upon the respondent to appear on 05.04.2022 for
adjudication of the show cause notice in response to which the
respondent sought some time, using that time to move the writ petition
before the High Court.
38. Undoubtedly, Declarations made under the Scheme are
sacrosanct and in a case where a discharge certificate has been issued
under Section 129, the settlement is final, except in the situations set out
under Section 129(2) of the Scheme. The provision is extracted below in
full:
‘129.(1) Every discharge certificate issued
under section 126 with respect to the amount
payable under this Scheme shall be conclusive as to
the matter and time period stated therein, and-
(a) the declarant shall not be liable to pay
any further duty, interest, or penalty with respect to
the matter and time period covered in the
declaration;
(b) the declarant shall not be liable to be
prosecuted under the indirect tax enactment with
respect to the matter and time period covered in the
declaration;
(c) no matter and time period covered by
such declaration shall be reopened in any other
proceeding under the indirect tax enactment.
(2) Notwithstanding anything contained in sub-
section (1).-
(a) no person being a party in appeal,
application, revision or reference shall contend
that the central excise officer has acquiesced in the
decision on the disputed issue by issuing the
discharge certificate under this scheme;
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(b) the issue of the discharge certificate with
respect to a matter for a time period shall not
preclude the issue of a show cause notice.-
(i) for the same matter for a
subsequent time period; or
(ii) for a different matter for the same
time period;
(c) in a case of voluntary disclosure where
any material particular furnished in the
declaration is subsequently found to be false,
within a period of one year of issue of the
discharge certificate, it shall be presumed as if the
declaration was never made and proceedings
under the applicable indirect tax enactment shall
be instituted.’
(Emphasis in bold, ours)
39. Section 129(1) says that every discharge certificate issued
under Section 126 is conclusive, subject to certain caveats under Section
129(2). The exception that is applicable in this case is set out under
Section 129(2)(c) of the Scheme. Our interpretation of clause (c), based
on the plain language in which it is couched, is that if a material
particular in an application is found to be false within one year from the
issue of the Discharge Certificate, there shall be a presumption as though
the Declaration had never been made with all statutory consequences to
follow.
40. The application filed on 15.01.2020 certainly contains a false
declaration of a material particular, as the very category under which it
has been submitted is wrong. Hence we are of the considered view that
the presumption for obliteration of the Declaration stands triggered as
per Section 129(2)(c) of the Scheme with all consequences. These aspects
ought to have been taken note of by the Writ Court as they have been set
out in detail in additional affidavit dated 04.11.2022.
41. The obliteration of the Declaration would be complete and
comprehensive in respect of all the processes that have transpired post
submission of the application, including the issuance of Form 3, the
receipt of the amount and issuance of Discharge Certificate on
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23.07.2020. Moreover, Section 130(1) (b) of the Scheme states that any
amount paid under this Scheme shall not be refundable under any
circumstances. Hence, with the obliteration of the application and all
further events upto and including the discharge certificate dated
23.07.2020, the respondent would also forfeit the payment made under
the SVLDRS Scheme on 29.06.2020.
42. Another discrepancy pointed out is in regard to the name of
applicant. While the GSTN number has been issued to M/s Heaven
Engineering, the application has been filed by the proprietor in his name,
Mr.Sathish Sundaram. Much has been made of this, stating that it is a
deliberate attempt to mislead and obtain a tactical advantage. We do not
completely agree on this front.
43. Certain file notings have selectively been produced for our
perusal under compilation dated 11.08.2025. The selection of the pages
are random and they are also not in order. Be that as it may, we have
assimilated the contents of the pages to understand the sequence of
events. On 27/28.02.2020, the following note has been made:
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44. This note reveals that the service tax returns filed in Form ST 3
by the respondent have been accessed by the Department. The returns
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will contain the name of the assessee, Heaven Engineering, and in all
probability, also state that the assessee is represented by the proprietor
Mr.Sundaram Sathish Kumar. Hence, the officers are clearly aware that
M/s.Heaven Engineering and Mr.Sundaram Satish Kumar are one and
the same. The ST3 returns would contain the GSTN number assigned for
the Proprietorship and this would further bolster the position that there
is no difference in the two names for tax purposes. The Department,
having accessed the records of the Respondent is in full possession of the
information in regard to the assessee / respondent.
45. There is one aspect of the matter that remains. A specific
clarification was sought by us related to the letters dated 26.02.2020,
27.02.2020 and 21.02.2020 issued by the DGGI (CZU), Superintendent
(ECM) and Commissioner of GST and Excise, Audit II Commissionerate
respectively, confirming that there was no investigation or audit as
against the respondent. Our attention is drawn to the file notings as
below:
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46. The explanation tendered is that, there was no investigation or
audit pending as on that date, that is on 26.02.2020, 27.02.2020 &
28.02.2020, when the letters had been sent, which is why those agencies
had stated so in their letters. They also refer to the show cause notice
issued on 06.02.2020 in this regard. This explanation is clearly an
afterthought.
47. As on 27.02.2020, the stand of the Department as reflected in
the file notings is that the Declaration of the Respondent is to be
accepted, as they say. ‘As per S.125(1)(f)(ii), where return has been filed
and an amount of duty indicated as payable has not been paid, then the
ARN become ineligible under SVLDRS. However, in this case no duty has
been declared in the return filed. – DGGI, CZU, Audit and ECM have
stated that no inquiry or audit initiated against the applicant. – Form 1
may be accepted and Form 3 may be issued.‘
48. Subsequent file notings dated 16.07.2020 as well as the
positive action taken by the Department by issuing Form 3 on
28.02.2020, receiving the declared amount on 29.06.2020 and issuing
discharge certificate in Form 4 on 23.07.2020 establishes without doubt
that they had no idea that there was a defect/lacuna in the application.
There is also no reference therein to Section 129(2)(c) of the Scheme.
Clearly, they had no inkling of matters at that time. The relevant notings
have been furnished and are extracted below:-
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49. In fact, if they did have knowledge of the fact that the
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W.A.No.2388 of 2022 & W.P.No.11457 of 2023application was compromised, and still went ahead to issue Form 3 and
discharge certificate, in Form 4, the matter assumes another ominous
dimension altogether. In such circumstances, their submissions would be
self – inculpatory.
50. One of us, (Anita Sumanth. J.) has separately heard Writ
Appeal No.2388 of 2022 relating to a sexual harassment complaint filed
by the Assistant Commissioner who had issued letter dated 27.08.2020,
as against the Commissioner who had issued the impugned show cause
notice. Prior to making that complaint, the Assistant Commissioner was
in receipt of charge memo dated 28.02.2022 calling for her response in
respect of the lapse in processing the SVLDRS Declaration of
Mr.Sundaram Sathish Kumar, Proprietor of M/s,Heaven Engineering.
51. In her complaint dated 24.05.2022, she levels allegations of
sexual harassment against the Commissioner, stating parallelly that
there was no error in the discharge of her official functions. We have
today, pronounced orders in that matter as well. This is the connect
between the two matters and we mention this order solely in the interest
of completion of narration.
52. I had indicated even at the time of hearing of that writ appeal
that it would be appropriate for all the matters to be heard together but
no action had been taken by the present appellants towards
consolidation. It is providential that the pending orders in that writ
appeal, the present matter has come to be listed before us as well as it
enables us to have a wholistic picture of the matter.
53. Both in the course of the hearing of W.A.No.2388 of 2022 as
well as in the present matter, the learned Standing Counsel have fairly
acceded to the position that all was not well in the processing of the
SVLDRS applications. There were aberrations and defalcations in the
discharge of duty by those officers involved in the implementation of the
SVLDRS scheme including the members of the Designated Committee.
Disciplinary action was initiated and some token punishment has been
imposed.
54. Letter of the officer dated 27.08.2020 makes it clear that it was
only at that time and juncture, that the Department awoke to the situation
and realised that the Declaration of the respondent was compromised.
Though it is projected to be innocuous, this is a material point, that
reveals that all was not well with the processing of the applications by
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the Designated Committee. That letter reads thus:
OFFICE OF THE COMMISSIONER OF GST & CENTRAL
EXCISECHENNAI – OUTER : I – 2054 . II : 600 040
NEWRY TOWERS : NO.2054 –I : II AVENUE : ANNA
NAGAR : CHENNAI – 600 040
C.No.IV/06/23/2014-SIR Gr XI Date:
27.08.2020
To,
The Assistant Commissioner of GST & C Ex
(TRC Section)
Chennai Outer CommissionerateMadam,
Sub: SVLDRS application of Shri Sundaram
Satish Kumar (ARN No.LD1501200009288) –
Reg.
—–
Please refer SVLDRS application filed by Shri
Sundaram Satish Kumar (STC BULPS3625PSD001) having
ARN No.LD1501200009288.
2. In this regard, it is noticed that SVLDRS-4 has been
issued to the taxpayer (Shri Sundaram Satish Kumar – STC
BULPS3625PSD001) for an amount of Rs.64,32,402/- for the
period April’2014 to June’2017. However, an investigation
was under process against the said taxpayer in Enforcement
and Compliance Management Section, Chennai Outer
Commissionerate and subsequently SCN No.01/2020 dated
06.02.2020 was issued to the taxpayer involving an amount
of Rs.9,07,53,180/- along with penalty and interest for the
period October ‘2012 to June ‘2017.
3. Further, it appears that the taxpayer deliberately filed
the SVLDRS application under “Voluntary Disclosure”
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despite being aware of the fact that the case is under
“Investigation”. Hence, it appears that the taxpayer mis-
declared the facts and concealed information deliberately
from department to evade the tax.
In view of the above, it is requested that necessary
action may be initiated at your end to safeguard the revenue.
Yours sincerely,
…………………
ASSISTANT
COMMISSIONER – ECM.
Copy to:
The Assistant Commissioner of GST & C Ex, Adjudication
Section, Chennai Outer Commissionerate for information
please.
55. The above letter has been, as we have noted earlier, issued by
the officer to herself in another capacity and there is nothing to indicate
what triggered letter dated 27.08.2020. In any event, it is only in August
2020 that the Designated Committee, and this officer, realise that an
investigation was under process in regard to the Respondent and that
show cause notice dated 06.02.2020 had been issued.
56. We specifically asked what action has been taken by either that
officer or any others to salvage the situation. However, there has been no
action barring that the request of the Respondent for dropping of show
cause notice dated 06.02.2020 had been rejected. This puts paid to the
attempt of the Appellants to justify the letters of the authorities dated
20.02.2020 giving a clean chit to the Respondent by stating that no
investigation was pending.
57. In fact the above argument is incorrect, to their knowledge. We
have the benefit of the proceedings of the memorandum issued to the
Assistant Commissioner who had penned letter dated 27.08.2020, as
conveyed to the learned Additional Solicitor General of India, that had
been produced before us. The findings and conclusion in those
proceedings are as follows:
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W.A.No.2388 of 2022 & W.P.No.11457 of 2023Present state of proceedings related to the
memorandum issued to ………………… by the
Office of the Customs, GST and Central Excise,
Chennai, Chennai Outer Commissionerate.
10. With reference to the above, it is submitted that
vide letter dated 28.08.2024, the office of the
Principal Chief Commissioner of GST and Central
Excise, Chennai has informed inter alia that the
investigation in respect of the case/issue referred to
in the Memorandum
No.GEXCOM/IGG/MISC/88/2021-VIG-O/O
COMMR-CGST-CHN(O) dated 28.02.2022 was
taken up by the Director General of Vigilance
(DGOV), New Delhi and that after completion of
the investigation the DGOV, New Delhi has
communicated its decision/directions through a
letter F.No.V.527/03/2023/794 dated 15.01.2024 to
the Principal Chief Commissioner of GST and
Central Excise wherein, at Para 4(ii) it is stated
that “regarding the role of Ms.Supriya Chandran,
the then Assistant Commissioner, it was observed
that she was in-charge of both investigation and
SVLDRS processing in the material time; that
however, there was a lapse on her part in as much
as furnishing “NIL” report denoting that there was
no investigation against the declarant; that it
appeared that the officer did not notice the name of
the unit viz. M/s.Heaven Engineering while putting
up the file to the designated Committee. It is
further stated, in the letter that though it is a fact
that SVLDRS-1 declaration has a mention of
M/s.Heaven Engineering in the addressed block, it
was taken to be a lapse by over sight and not a
deliberate act, as it may not practically be possible
for an officer at the rank of the Assistant
Commissioner to compare each and every detail of
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W.A.No.2388 of 2022 & W.P.No.11457 of 2023while there appeared to be a negligence on the part
of the Officer, but the same cannot be attributed to
a deliberate mis-conduct and thus an
Administrative Warning to the Officer for being
more careful in future has been approved by the
Competent Authority”.
11. Further, vide letter
F.No.DGoV/Conf/MISC/97/2022-O/oPr.DG-
HQRS-DELHI dated 30.08.2024, the DGoV
informed at Para 3 that “The investigation into a
complaint regarding wrong acceptance of
SVLDRS-3 and consequent issuance of SVLDRS-4
(Discharge Certificate) in respect of Sabka
Vishwas (Legacy Dispute Resolution) Scheme
(SVLDRS) declaration filed under “Voluntary
Disclosure” category by Sh.Sundaram Satish
Kumar, Proprietor of M/s.Heaven Engineering was
taken up. The investigation sought to find out the
act of omissions and commissions on the part of the
officers in dealing with the matter. As per the
finding of the investigation, issuance of
Administrative Warning was proposed.
Accordingly, with the approval of the competent
authority, an Administrative Warning was issued to
. . . . . . . (then AC), the complainant on 24.02.2024.
Administrative Warning was also issued to other
three (03) officers namely Sh.Meenakshi Sundaram
(AC), Sh.Ganpat Singh Meena (Supdt.) and
Sh.Ranjith Kumar, Supdt. on the same matter.
(name withheld by us)
58. With this, the total lack of coordination between the officers in
the Department is apparent, especially between the authority who issued
the show cause notice and the officers in the Designated Committee, who
proceeded to issue Form SVLDRS -3 and discharge certificate without
reference to the show cause notice.
59. In light of our detailed discussion as above, particularly our
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interpretation of Section 129(2)(c) of the Scheme, we are of the view that
the application filed in this case is vitiated by non-disclosure of material
particulars, being the field relating to ‘category’. As a result, the
SVLDRS application is presumed not to have been filed at all. We hence
reverse the order of the Writ Court and allow this Writ Appeal.
60. The Department is directed to proceed with the show cause
notice in accordance with law, adhering to the principles of natural
justice and conclude the proceedings within a period of three (3) months
from date of receipt of a copy of this order. In light of the discussion as
above, let the adjudication of the impugned Show Cause Notice be
entrusted to some other Commissionerate and the directions in this
paragraph, be communicated, to ensure compliance.
75. With this, the issue in regard to the processing of the SVLDRS
Declaration stands decided. After devoting our anxious consideration to
this matter, we conclude that this issue is a stand-alone, independent one,
and that the issue relating to sexual harassment can well be decided
without reference to, or the need to advert to the SVLDRS Declaration.
The inquiry of the ICC, as directed, will reveal whether R4 has, in fact,
levelled the allegations of sexual harassment as a counter-blast and bring
the truth to light. R4’s complaint of sexual harassment will hence be
decided on the strength of the allegations levelled in that complaint.
76. 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
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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.
Part C – W.P.No.11457 of 2023
77. In this Writ Petition the Union of India/P1, Internal Complaints
Committee/P2 and Chief Commissioner of Customs/P3 challenge order
of the Central Administrative Tribunal (in short ‘CAT’/’Tribunal’) dated
20.02.2023. The appellant in W.A.No.2388 of 2022 is arrayed as R1 and
had been the applicant before the Tribunal. The Registrar of the Tribunal
is arrayed as R2. In the interests of uniformity, we refer to the parties in
the Writ Petition also as per their array in the Writ Appeal, barring R2 in
the Writ Petition, who is referred to, where necessary, as Registrar, CAT.
78. The appellant had challenged the order of the Union of India
dated 13.07.2022 suspending him from service before the Tribunal.
Learned counsel for the Union had submitted that the suspension was on
the basis of the allegation of sexual harassment and where the ICC had
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rendered a finding that he was guilty. The Tribunal noted that the
impugned order dated 13.07.2022 did not refer to a sexual harassment
complaint or any matter pending before the ICC or any other offence for
that matter.
79. At the time when the impugned order of the Tribunal was
passed, the order passed in W.P.No.17798 of 2022 dated 09.09.2022 had
been carried in appeal and the order of the Writ Court had been stayed on
03.11.2022. One of the prayers before the Writ Court had been for setting
aside the suspension order dated 13.07.2022 and as regards that, the Writ
Petition had been dismissed stating that since O.A.No.609 of 2022 had
been pending before the Tribunal, it is only the Tribunal which is the
appropriate authority to hear the same.
80. In regard to order dated 13.07.2022, the Tribunal has ultimately
disposed the application for the reasons that i) the suspension order did
not indicate anything about sexual harassment, ii) no disciplinary
proceedings were initiated nor was there any charge memo issued, iii) the
headquarters of the appellant had been shifted to Principal Chief
Commissioner of Central Goods and Services Tax (Kolkata Zone), iv)
that there had been a direction that the appellant should not leave the
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headquarters without the permission of the competent authority, v) that he
had been entitled to receive subsistence allowance and vi) that the
suspension initiated by the Chennai Zone could not continue when his
office has been shifted to the Kolkata Zone.
81. Mr.AR.L.Sundaresan, assisted by Mr.M.Santhanaraman,
learned Senior Standing Counsel would maintain that the suspension had
emanated only from the recommendations of the ICC. He would also
submit that the extant statutory provisions and regulations require
suspension of an employee charged with allegations of sexual harassment
till such time finality is reached in respect of the complaint.
82. He would assail the order of the Tribunal on the ground that the
suspension had been set aside even prior to the expiry of the period of
270 days as stipulated in Rule 10(7) of the CCS(CCA) Rules, and taking
into account the stay granted by the Division Bench on 03.11.2022, the
period of 270 days of suspension had not been complete at the time when
the impugned order had been passed by the Tribunal on 20.02.2023.
83. The entire sequence of events has been taken note of by the
Union in order dated 06.04.2023, wherein, it has taken note of
amendment dated 19.10.2022 to Rule 10(7) of the CCA (CCA) Rules,
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1965 which stipulates that in a case where no charge sheet has been
issued under those Rules, the total period of suspension including an
extended period in terms of sub-Rule (6) shall not exceed 270 days.
84. R1 for his part would defend the order of the Tribunal,
referring to the following cases. We have heard the learned counsel. In
light of the conclusion that we have arrived at, we, however, do not see
any need to advert to the following cases cited by R1.
Citations of 1st respondent in WP.No.11457 of 2023
1. Union of India and Others v. Shibram Sarkar73
2.R.Patchaiappan v. The Principal Secretary Cum Commissioner, Hindu
Religious and Endowment Department, Mahatma Gandhi Road,
Nungambakkam, Chennai-34 and others74
3.Mahendra Singh Rajawat v. Punjab National Bank and others75
4.Dr.P.Govindaraju v. The Manonmaniam Sundaranar University, Rep.
by its Registrar, Abishekapatti, Tirunelveli-627 012.76
5. Manonmaniam Sundaranar University, Represented by its Registrar,
Abishekapatti, Tirunelveli-627 012 v. Dr.P.Govindaraju77
6.Pradip Mandal v. Metal Scrap Trade Corporation Ltd. and Others78
7.Institute of Hotel Management, Catering Technology and Applied
Nutrition & ors. V. Suddhasil Dey & Another79
8.Zunjarrao Bhikaji Nagarkar v. Union of India and Others80
9.Yoginath D.Bagde v. State of Maharashtra and Another81
10.Union of India and Another v. Ashok Kumar Aggarwal82
73 2019 SCC OnLine Cal 9105
74 WP(MD)No.16994 of 2019 dated 01.08.2019
75 S.B.Civil Writ Petition No.14558 of 2022 dated 03.01.2023
76 WP(MD)No.979 of 2019 dated 24.01.2020
77 WA(MD)No.428 of 2020 dated 20.04.2022
78 2022 SCC OnLine Cal 1304
79 WPCT 137 of 2019 dated 13.03.2020
80 (1999) 7 SCC 409
81 (1999) 7 SCC 739
82 (2013) 16 SCC 147
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11.Dr.A.Manimekalan v. The Registrar, Bharathiar University,
Coimbatore-641 04683
12.Dr.Kali Charna Sabat v. Union of India and Others84
13.Pawan Kumar Niroula v. Union of India & others85
14.Abhijit Karjee v. The State of West Bengal and others86
15.Dina Nath Pandey v. The State of West Bengal & Others87
16.Neeraj Dhama v. State of U.P. and others88
17.Union of India & Others v. Ashiquzzaman89
18.Tapas Kumar Roy v. The State of West Bengal & Another90
19.Gurpal Singh v. High Court of Judicature of Rajasthan91
85. We are given to understand that the appellant has reported for
duty in Jharkhand and is serving there. Disciplinary proceedings, we are
told, were under contemplation, but have not been initiated thus far. We
also find that the order of suspension of the appellant impugned before
the CAT is completely silent on the reasons for suspension. Moreover, we
have directed the ICC to be re-constituted and issued a series of
directions for conduct of inquiry, also setting out timelines in that regard.
86. In such circumstances, we do not feel that there is any necessity
for orders to be passed at this juncture, varying the services of the
Appellant. Hence, and as far as the service of the appellant is concerned,
83 WP.No.5764 of 2023 etc. batch dated 27.07.2023
84 2024 SCC OnLine MP 7314
85 2022 SCC OnLine Cal 180
86 WP.ST.83 of 2018 dated 23.02.2021
87 2018 SCC OnLine Cal 5313
88 2019 SCC OnLine All 7286
89 WP(C)No.12859 of 2020 dated 31.07.2020
90 WPST.4 of 2024 dated 06.08.2024
91 (2012) 13 SCC 94
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let status quo be maintained till the completion of the proceedings
referred to the ICC in terms of directions at paragraph 35 above, and
subject thereto.
87. The Writ Appeal and Writ Petition stand disposed in terms of
this order with directions as above. No costs. C.M.P.No.14442 of 2024
stands dismissed and all other connected Miscellaneous Petitions are
closed.
[A.S.M., J] [G.A.M., J]
20.08.2025
sl
Index:Yes
Speaking order
Neutral Citation:Yes
To
1.The Chairman,
Central Board of Indirect Taxes & Customs,
North Block,
New Delhi – 110 001.
2.Internal Complaints Committee
Headed by Ms.Prachi Saroop, IRS
Principal Additional Director General,
Directorate General of Vigilance,
West Zonal Unit,
New Custom House,
Annex Building, 7th Floor,
Mumbai – 400 001.
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3.The Principal Chief Commissioner,
Central Goods Services Tax & Central Excise,
Tamil Nadu & Puducherry Zone,
121, Uthamar Gandhi Salai,
Nungambakkam, Chennai-600 034.
4.The Chief Commissioner,
Chennai Customs Zone,
Custom House,
No.60, Rajaji Salai,
Chennai – 600 001.
5.The Registrar,
Central Administrative Tribunal,
Chennai Bench, Chennai.
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W.A.No.2388 of 2022 & W.P.No.11457 of 2023
DR. ANITA SUMANTH,J.
and
G. ARUL MURUGAN.,J
sl
WA.No.2388 of 2022 and
CMP.No.14442 of 2024 and
CMP.No.18244 of 2022 and
CMP.Nos.2733 & 4018 of 2023 and
WMP.Nos.11338, 11339 & 5149 of 2023 and
WP.No.11457 of 2023
20.08.2025
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