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IN THE HIGH COURT AT CALCUTTA
SHAMPA SARKAR, J.
Debjani Sengupta - Appellant
Versus
The Institute of Cost Accountants of India & Ors. - Respondents
RVW No. 128 of 2019 in WPA No. 4806 of 2019
Decided On : 04-07-2023
REVIEW – OFFICERS’ SERVICE RULES, 1983 – SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013 - SECTION 13(3)(I) - RULES 7 AND 9 OF THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) RULES, 2013 - APPLICANT/WRIT PETITIONER SOUGHT REVIEW OF JUDGEMENT AND ORDER DATED MAY 3, 2019 ON THE GROUND THAT THE JUDGMENT DISCLOSED ERROR APPARENT ON THE FACE OF RECORD AS THE OFFICERS’ SERVICE RULES, 1983 (HEREINAFTER REFERRED TO AS THE SAID SERVICE RULES) HAD NOT BEEN PUBLISHED IN THE GAZETTE OF INDIA - HELD, THE COURT DOES NOT FIND ANY ERROR APPARENT ON THE FACE OF RECORD - THE TERMS AND CONDITIONS OF EMPLOYMENT OF BOTH THE PETITIONER AND THE RESPONDENT NO.7 CRYSTALLIZED WITH THE ACCEPTANCE OF THE APPOINTMENT LETTER DATED MARCH 25, 2013 IN CASE OF THE APPLICANT/WRIT PETITIONER AND ON JULY 11, 2012 IN CASE OF THE RESPONDENT NO.7 - THE APPOINTMENT LETTERS CLEARLY STATED THAT THE SERVICES OF BOTH THE EMPLOYEES WOULD BE GOVERNED BY THE TERMS AND CONDITIONS OF OFFICERS’ SERVICE RULES FRAMED BY THE INSTITUTE OF COST ACCOUNTANT OF INDIA - THUS, THERE IS NO DENIAL OF FACT THAT THE SERVICE OF BOTH THE PETITIONER AND THE RESPONDENT NO.7 WERE GUIDED BY THE SAID RULES AND THE OFFER OF APPOINTMENT WITH SUCH CONDITION AND ACCEPTANCE OF THE SAME BY THE EMPLOYEES, AMOUNTED TO A CONCLUDED CONTRACT BETWEEN THE EMPLOYER AND EMPLOYEES.
Fact of the Case:
The writ petitioner of WPA 4806(W) of 2019, inter alia, praying for setting aside the judgment and order dated May 3, 2019, had filed an application for review. The prayer for review had been made on the ground that the judgment disclosed error apparent on the face of record. As the Officers’ Service Rules, 1983 (hereinafter referred to as the said service rules) had not been published in the Gazette of India, the direction of the Court upon the employer to initiate disciplinary proceedings under the said service rules and to take necessary steps with regard to imposition of punishment etc. as per the provisions of chapter-V of the said service rules, was a mistake of law and should be corrected.
Finding of the Court:
The Court does not find any error apparent on the face of record. The terms and conditions of employment of both the petitioner and the respondent No.7 crystallized with the acceptance of the appointment letter dated March 25, 2013 in case of the applicant/writ petitioner and on July 11, 2012 in case of the respondent No.7. The appointment letters clearly stated that the services of both the employees would be governed by the terms and conditions of Officers’ Service Rules framed by the Institute of Cost Accountant of India. Thus, there is no denial of fact that the service of both the petitioner and the respondent No.7 were guided by the said rules and the offer of appointment with such condition and acceptance of the same by the employees, amounted to a concluded contract between the employer and employees.
Issues: Whether the judgment disclosed error apparent on the face of record as the Officers’ Service Rules, 1983 (hereinafter referred to as the said service rules) had not been published in the Gazette of India?
Ratio Decidendi: Even if the service rules did not cover all situations, the employer would not be precluded from issuing administrative orders or from laying down a procedure to cover up the lacuna or gaps in the service rules and the same would be a part of the terms and conditions of service of an employee and could be treated as the service rules of the employees.
Final Decision: The review petition is dismissed.
JUDGMENT :
Shampa Sarkar, J.
1. The application for review had been filed by the writ petitioner of WPA 4806(W) of 2019, inter alia, praying for setting aside the judgment and order dated May 3, 2019.
2. The prayer for review had been made on the ground that the judgment disclosed error apparent on the face of record. As the Officers’ Service Rules, 1983 (hereinafter referred to as the said service rules) had not been published in the Gazette of India, the direction of the Court upon the employer to initiate disciplinary proceedings under the said service rules and to take necessary steps with regard to imposition of punishment etc. as per the provisions of chapter-V of the said service rules, was a mistake of law and should be corrected.
3. Mr. Kallol Basu, learned Advocate appearing on behalf of the applicant/writ petitioner referred to Section 16(2)(a) of the Cost and Works Accountants Act, 1959 (hereinafter referred to as the said Act) and submitted that the council was the appointing authority of the writ petitioner as also the respondent No.7. The proceeding under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the Act of 2013), was initiated against the respondent No.7, on the basis of the complaint of the petitioner.
4. According to Mr. Basu, the council was empowered to prescribe the salaries, fees, allowances of the officers and employees of the council as also their terms and conditions of service. The term ‘prescribed’, had been defined under Section 2(g) of the said Act as ‘prescribed by regulations under the Act’. Referring to Sections 39(2) and 39(3), Mr. Basu urged that all rules and regulations made by the council under the provisions of the said Act should be published in the official gazette with the approval of the Central Government. As the said service rules of 1983, had not been placed before the houses of the Parliament and had not been published in the official gazette, the rules were non-est in the eye of law. The judgment passed by this Court suffered from the illegality of having directed the employer to proceed with the recommendation made by the ICC by applying the provisions of a non-existing rule. In support of such argument and relying on the decision of the Hon’ble Apex Court in the matter of Board of Control for Cricket in India and Anr. vs. Netaji Cricket Club and Ors. reported in (2005) 4 SCC 741, Mr. Basu submitted that mistake of a Court could be corrected in review. Further reliance was placed in the decision of Medha Kotwal Lele vs. Union of India reported in (2013) 1 SCC 297, on the proposition that once the report of the ICC recommended a punishment, the punishment should be imposed upon the accused. The report should be treated as the enquiry report in any disciplinary proceeding and not as a preliminary report leading to a further disciplinary action as per the service rules. As such, the judgment of this Court, directing further disciplinary proceeding as per chapter-V of the said service rules was erroneous and contrary to the said judgment of the Hon’ble Apex Court and should be reviewed.
5. By referring to the provisions of the Act of 2013, Mr. Basu submitted that in the absence of any rules and regulations, the decision of the ICC was final and hence no further disciplinary proceedings should be initiated by the employer in terms of the said service rules. The punishment as recommended by the ICC should have been imposed straight away and this court should not have further directed the employer to proceed in terms of the service rules, before imposing any punishment.
6. According to Mr. Basu, the decisions of the Hon’ble Apex Court cited by Mr. Bihani, would not be applicable in this case. Those decisions directed that the report of the ICC should be followed by a formal enquiry in terms of the service rules applicable. In this case, there were no service rules in the eye of law and the judgment should be review
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