* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: 28th September, 2010 Judgment Delivered On: 2 nd November, 2010 + W.P.(C) 6113/2010 DR.SUNIL CHAUDHARY Petitioner Through: Petitioner in person• versus MCD & ORS. Respondents Through: Mr.Gaurang Kanth and Ms.Biji Rajesh, Advocates U CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG Whether reporters of local papers may be allowed to see the judgment? To be referred to the Reporter or not? Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, I. For orders, see W.P.(C) No.6423/2010. PRADEEP NAN DRAJOG, J. MOOL November 02, 2010 mm Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified 6 •1 I * IN THE HIGH COURT OF bELHI AT NEW DELHI % Judgment Reseived On: 28th Septernber, 2010 Judgment Delivered On: 2 nd November, 2010 + W.P.(C) 6423/2010 NEENA SHAD Petitioner Through: Petitioner in person versus MCD Respondent Through: Mr.Gauraflg Kanth. and Ms.Biji Rajesh, Advocates W.P.(C) 6113/2010 DR.SUNIL CHAUDHARY ... .. Petitioner Through: Petitioner in person versus MCD & ORS. ,,..: Respondents Through: Mr.Gaurang Kanth and Ms.Biji Rajesh, Advocates CORAM: HONBLE NAN HON'BLE MR JUSTICE MOOL CHAND GARG Whether reporters of localpaperS may be allowed to see the judgment? Tobe referéd to the Rpoter or not? Whether the judgment should be reported in the Digest? PRADEEP NANDRAIOGJL 1. Btwéen the years 2001-2002 Munidpal Corporation of Delhi (hereinafter referred to as "MCD") appointed 41 doctors as Medical Officers (A'yurveda) on contractual basis, including W.P.(C) Nos.6423/2010 & 6113/2010 Pagelof32 1~r the petitioners who are married to each other. The relevant I portion of the letters containing the terms and conditions of the appointment of said Medical Officers issued by MCD reads as under:- With reference to his/her Walk-in-interview and approval of Commissioner, Municipal Corporation of Delhi, Dr,Neena Shad/Dr.Sunil Chaudhary is hereby given Offer of Appointment to the post of Ayurvedic Vaid on contract basis at a fixed amount of Rs.10,000/- per month initially for a period of six months, or till such time the post is filled up on regular basis through UPSC, whichever is earlier subject to the following terms and conditions:- 1. The post is purely on contract basis for a period of six months or till such time the post is filled up on regular basis by CED through UPSC, whichever is earlier. The appointment can terminated at any time on either side by ciivinci one month's notice or by S payinQ one month's salary without assiQninQ any reason ........ (Emphasis Supplied) From time to time, MCD extended the term of appointment of the aforesaid Medical Officers including the petitioners. Remuneration of the said Medical Officers was also enhanced. On 13.07.2007 a complaint was made to the Commissioner MCD by petitioner Neena Shad, who was then posted at Bihari Pur Ayurvedic dispensary, against one Shiv Dayal Kain, Compounder in the said dispensary, inter-alia alleging that she was sexually harassed by the said Compounder. In view of the complaint made by petitioner • Neena Shad, Commissioner, MCD directed DrAshok Garg, Chief Medical Officer to investigate into the matter and submit a report in said regard. On 16.07.2007 Dr.Ashok Garg, Chief Medical Officer, submitted a report wherein he opined that Mr,Shv Dayal Kain W.P.(C) Nos.6423/2010 & 6113/2010 Page 2 of 32 ) be transferred from Bihari Pur dispensary to Ayurvedic dispensary of Swami Dayanand Hospital. He further opined that 'I found no harassment with MO//C by the pharmacist. It has come to my notice that both are faulty one or the other issue.' 5. Thereafter one Mr.Shri Ram was appointed as Compounder in Bihari Pur Ayurvedic Dispensary. Petitioner Neena Shad alleged that since the said Compounder was not discharging his duties in a satisfactory manner she went to the office of Chairman, Medical Relief and Public Health Committee on 22,11,2007 to complain about Compounder Shri Ram where she was manhandled by Mr.Prakash Chand Dagar, Peon to the Chairman, while she was waiting to meet the Chairman. The petitioner filed a complaint with Commissioner, MCD regarding . the said incident. Considering the problems between petitioner Neena Shad and Compounder Shri Ram, a decision was taken by the higher officials of the Health Department of MCD on 23.11.2007 to transfer the petitioner from Bihari Pur dispensary to Nand Nagari dispensary. On the same date i.e. 23.11.2007 Dr.Vidya Sagar Sharma, who was officiating as DHO (ISM) accompanied by Dr.Ashok Garg, Chief Medical Officer, visited Nand Nagari dispensary to facilitate petitioner Neena Shad in joining the said dispensary. Petitioner Neena Shad alleged that Dr.Vidya Sagar had touched her in a derogatory manner. The police was called on the spot to inquire into the matter. 46 In his defence, Dr.Vidya Sagar stated that on the directions of Chairman, Medical Relief and Public Health Committee he along with Dr.Ashok Garg had gone to Nand Nagari dispensary to facilitate petitioner Neena Shad in joining the said dispensary where petitioner Neena Shad was present w.P.(c) Nos.6423/2010 & 6113/2010 Page 3 of 32 along with her husband Dr.Sunil Chaudhary. Petitioner Neena Shad and her husband unnecessarily picked up a fight with him and thereafter called the police and falsely accused him of sexually harassing Neena Shad. 9. An enquiry was conducted into the aforesaid matter by the Office of Deputy Commissioner of Police and a report was submitted in said regard, which report reads as under:- "Allegations leveled by the Complainant against her Senior Doctor Vidya Sagar Sharma and Dr.Ashok Garg are uncalled for as the entire episode took place in public where her husband was also present. Allegations, of molestation/Indecent behavior are false, baseless and motivated." Thereafter petitioner Neena Shad filed a complaint against Dr.Vidya Sagar before Commissioner, MCD. In terms of thedirections issued by Supreme Court in the decision reported as Vishaka v State of Rajasthan (1997) 6 SCC 241, Commissioner, MCD referred the afore-noted two complaints filed by petitioner Neena Shad against Prakash Chand Dagar and Dr. Vidya Sagar respectively to Sexual Harassment Complaints Committee (hereinafter referred to as "Committee") comprising of following members:- (I) Ms.Meera Akolia, Municipal Secretary, MCD; (ii) Mr.P.K. Gupta, Director (Printing & Stationary), MCD; (iii) Dr.Vireshwar, Chief Medical Officer, Town Hall Dispensary, MCD; (iv) Ms.Meenakshi Sobti, P.R.O., Kasturba Hospital and (v) Ms.Aparna Bhat, NGO Member. During the pendency of proceedings of Sexual Harassment Complaints Committee, a report was submitted by Dr.M,L. Khatri, DHO (ISM) in March 2008 regarding the conduct of petitioner Neena Shad, the relevant portion whereof reads as under:- W.P.(C) Nos.6423/2010 & 6113/2010 Page 4 of 32 9 "Dr.Neena Shad is working as Medical Officer (Ay.) on contract basis since 2001 and presently posted at Ay. Dispensary Nand Nagri. During her stay in various dispensaries her behavior towards with junior and subordinate staff was not found satisfactory. It came into notice that the officer who asked for her punctuality and behave properly to juniors, she always. leveled allegations of sexual harassment upon everyone. It has happened with previous DHO Dr.V.P. Kanoji and the junior staff who worked/working under her supervision in a awful situation which is created by her for her own interest. It is pertinent to say that during last year Deptt, made so many transfers of pharmacists but none of them was interested to work under her with the fear of leveling false sexual harassment charges...." (Emphasis Supplied) 12, The first hearing of the Committee took place on 15.05.2008. In the said hearing, the notices for appearance before Committee were issued to the petitioners, Ms.Sudesh . Kumari, Ms.Renu Gill, Dr.Vidya Sagar Sharma and Dr.Ashok Garg. The hearing was adjourned to 22.05.2008. On the next hearing i.e. 22.05.2008 Dr.M.L. Khatri, DHO (ISM), informed the Committee that the notices for hearing could not be served upon.the petitioners. Regarding the non- service of notices to the petitioners, Dr.M.L. Khatri stated before the Committee that when contacted over telephone regarding the service of the notices the petitioners stated that they will personally collect the notices from the office but they did not come to the office. In view of non-service of notices to the petitioners, the Committee decided that the notices for appearance be delivered in the respective dispensaries where the petitioners are working and waited for the status of service . of notices. In the meantime, witnesses; Dr.Vidya Sagar, Dr.Ashok Garg, Ms.Renu Gill and MsSudesh Kumari were examined, W.P.(C) Nos.6423/2010 & 6113/2010 Page 5 of 32 Dr.Vidya Sagar reiterated the defence taken by him before the police. Dr.Ashok Garg duly corroborated the statement of Dr.Vidya Sagar and firmly denied that any. incident of sexual harassment had taken place on 23.11.2007 as alleged by petitioner Neena Shad. Ms.Renu Gill who had worked as ANM with petitioner Neena Shad for a period of over two months stated that petitioner Neena Shad used to cry for no reason and pick up fights with other members of staff. That husband of Neena Shad used to accompany her to the dispensary and attend patients even though he was posted at a.nother dispensary. That Neena Shad used.to come to the dispensary late, take away the attendance register of the dispensary to her residence and bring her child to the dispensary every day. . That she had sought the transfer from the dispensary in question due to the behavior of Neena Shad. Ms,Sudesh Kumari who was posted as Compounder in Nand Nagari dispensary stated that Neena Shad used to cry easily and pick up fights with people. Regarding incident of sexual harassment, she stated that Dr.Vidya Sagar had no occasion to touch Neena Shad. Regarding the service of notice to petitioner Neena Shad, the pharmacist in Nand Nagari 'dispensary informed the Committee that Neena Shad had left the Committee around noon stating that she was going to the office for some work. Regarding the service of notice to petitioner Sunil Chaudhary, the petitioner was not found present in the dispensary at the time when the dispatch rider reached there. Mr,Keshav Das, Compunder refused to receive the notice and stated that Dr.Sunil Chaudhary had left the office to collect the notice personally, which statement was found to be untrue by the . Committee. w.P.(c) Nos.6423/2010 & 6113/2010 Page 6 of 32 fl At about 04.00 P.M. one Keshav Dass, Compounder came in the office of Committee to collect the notice of Dr.Sunil Chaudhary. When questioned by the members of the Committee, he informed that Dr.Sunil Choudhary had sent him to collect the notice. When further inquiries were made from Keshav Dass he feigned fainting. The members of the Committee were of the view that Keshav Dass was under the tremendous influence of Dr.Sunil Chaudhary and feared his wrath. In the meantime, the Committee sent the dispatch rider to the residence of the petitioners to serve the notices where the petitioners treated him very. badly. First the petitioners refused to receive the notices falsely stating that they do not reside there. When the dispatch rider insisted upon serving the notices, the petitioners seized the keys of the motorcycle of the dispatch rider whereupon the police was called. It was only upon the intervention of the police that the petitioners returned the keys to the dispatch rider. In view of the afore-noted uncooperative and obstructive behavior of petitioner Neena Shad, the Committee chose not to give any further opportunity to her to present her case before the Committee and submitted its report inter-alia opining that the allegations of sexual harassment leveled by petitioner Neena Shad against Dr.Vidya Sagar and Mr.Prakash Chand Dagar are false and baseless. The relevant portion of the report of the Committee reads as under:- "CONCLUDING COMMENTS This is one of the strangest cases that the Committee has received. The Complaints Committee on Sexual Harassment was set up to provide speedy redressal to the victims of sexual harassment. The Committee comprises of Senior Officers of MCD and the complaints are heard on priority basis to ensure wP.(c) Nos.6423/2010 & 6113/2010 Page7of32 i I S that women are not harassed. However, the present case seems to be a case of total abuse of this fora. The Committee takes strong objection to the conduct of the complainant due to the following reasons: a Although she was given a hearing of over 2 hours on the first day of hearing totally uninterrupted, the complainant chose to call the Chairperson of the Committee late at night to discuss the case and she had to be firmly told to refrain from making those calls; b. The cross examination was fixed to facilitate the hearing. The complainant was advised that she would be intimated about the date and she should appear before the Committee. However, not only did she not appear, she misbehaved with the Dispatch Rider specially sent to her residence by calling the police. This incident also subjected senior officials of the MCD to harassment and humiliation late into the night; C. After having got the notice, Dr.Shad feigned the illness by stating that both she and her husband have taken ill and cannot before the Committee; The Complainant had made allegations against a Peon in the office of Chairman, MRPH Committee, a compounder, Shiv Dayal and Dr.Vidya Sagar Sharma. However, before the Committee she first stated that H she does not want to pursue against the Peon and Shiv Dayal. She then changed her statement and stated that she would like to think about it. She has not intimate the Committee till abouther decision; When the Committee tried to contact her at the dispensary during working hours, she was found absent from the dispensary. She had not taken permission to leave the di.spensary during working hours. She had informed her pharmacist that she was going out on official work and misledher; Dr.Vidya Sagar in his statement before the Committee also brought to the attention of the Committee the manner in which the complainant along with her husband had threatened other staff by calling the' police, going to their houses with W.P.(C) Nos.6423/2010 & 6113/2010 Page 8 of 32 hooligans etc. The Committee had looked at the file containing these complaints and is surprised as to why no action was taken by the department..... The Committee's responsibility is only to look into the merits of the allegations of sexual harassment. However, due to the shocking conduct of the complainant, her husband Dr.Sunil Chaudhary and certain other persons of the Health Department, the Committee is constrained to make the following observations. The doctor couple seem to have terrorized the department as the DHO, (ISM) Dr.M.L.Khatri, the pharmacists and other staff was visibly scared of them; The administration of the DHO (ISM) is very weak. Although he was aware about the conduct of both the doctors and their indiscipline, he allowed them to go scot free; C. The complainant herself has shown hicihly insubordinate behavior. She had herself admitted that she had questioned Dr.Vidya Sagar why he visited her dispensary. She never marked her attendance at the hospital, refused to receive the notices sent by this Committee. She also did not respect the hierarchy. She went above the departmental officers directly to the Commissioner and when it suited her also met the Chairman for routine administration matters; RECOMMENDATIONS: The Committee makes the following recommendations. The oresent complaint ofsexual harassment is I relected as there is no merit in the complaint; Contract staff should not be given independent charge of the dispensaries. Strict, disciplinary action is recommended aciainst both Dr.Neena Shad and Dr,Sunil Chaudhary for abusinQ the process of law, taking law onto their \ ~_A W.P.(C) Nos.6423/2010 & 6113/2010 Page 9 of 32 own hands and showing total disregard to the committee as well as other Senior Officers of their department;" (Emphasis Supplied) In view of the recommendations contained in the afore- noted report of the Committee, Commissioner. MCD took a decision on 17.06.2008 not to continue with the engagement of the petitioners with MCD as both of them were a nuisance and no subordinate person was, ready to work at the dispensary where they could be posted. On 15.07.2008 an Office Order was issued by MCD extending the term of appointment of 35 out 39 Medical Officers who were similarly placed as the petitioners. The extensions could not be granted to 4 Medical Officers due to the fact that DHO (ISM.) did not forward their Performance Appraisals to the concerned authority. On 03.07.2008 Office Order(s) were issued by MCD dispensing with the services of the petitioners. The said Office Order(s) reads as under:- "Dr.Sunil Choudhary/Neena Shad was employed in MCD on contract basis as Medical Officer (Ayurveda). His/her period of contract has expired on 07.05.2008. The Competent Authority has not approved his/her re-engagement and hence, he/she is no more in Municipal services. This issues with the prior approval of the Competent Authority." • 25. On 01.08.2008 Office Order(s) were issued by MCD - granting extensions to 4 Medical Officers who were not . granted extensions earlier due to non-receipt of their Performance Appraisals as also to 26 Medical Officers who were junior to the petitioners. 26. Aggrieved by the Office Order dated 03.07.2008 issued by MCD, petitioner Neena Shad filed a writ petition bearing W.P.(C) Nos.6423/2010 & 6113/2010 Page 10 of 32 ' No.7037/2008 under Articles 226 and 227 of Constitution of India before this Court. At this juncture, it would be most apposite to note some of the averments made by the petitioner in the said petition:- "l. That your humble Petitioner is aggrieved by the letter/order no 378/ADC (H)/2008 dated 03-07-2008 in which the services of the petitioner was removed on the pretext that the competent authority has no approved her re-engagement and hence she is no more in Municipal Services. While other persons who are iunior and the senior from the petitioner still working with the respondents..... 15. That it is submitted that the said posts are still not filled bythe Union Public Service Commission and the other persons who was employed with the petitioner is still working with the respondents. That it is submitted that the respondent twice appointed on the contract basis approx. 35 doctors with the same conditions as the same applied in the case of the petitioner. That the services of the petitioner removed with no reason and except that the authorities did not extend the contract period. No reason has been assigned why the period of the petitioner and her husband have not been extended out of the complete list. GROUNDS: D BECAUSE the services of the petitioner was terminated on the basis of pick and chobse; E BECAUSE no reason has been assigned why only the petitioner and her husband's services were terminated/not extended while other persons are still working with the respondent; W.P.(C) Nos.6423/2010 & 6113/2010 Page 11 of 32 F BECAUSE there were other person/doctors who are either junior or senior to the petitioner is still working with the respondents; G BECAUSE the impugned order is the violation of Article 14 and 21 of Constitution of India; "(Emphasis Supplied) 27. Vide order dated 26.09.2008 this Court dismissed the said writ petition on the ground that a contractual appointment does not confer any legal right upon the holder of such a post and it is the prerogative of the employer to allow the contractual appointee to continue him in service and the court cannot interfere if such a discretion exercised is by the employer unless the discretion is found to be vitiated by mala fide or extraneous considerations. S 28. Aggrieved by the order dated 26.09.2008 passed by this Court, petitioner Neena Shad filed letters patent appeal before a Division Bench of this Court, which appeal was dismissed vide order dated 24.10.2008. Thereafter petitioner Neena Shad filed another writ petition bearing No.11791/2009 under Articles 226 and 227 of Constitution of India before this Court inter-alia highlighting that MCD had meted out a most discriminatory treatment to her by extending the term of appointment of all the 39 Medical Officers who were similarly placed as the petitioners including the four Medical Officers who were not given extension in the first instance as also of 26 Medical Officers who were junior to . the petitioners, which petition stood transferred to Principal Bench, Central Administrative Tribunal, New Delhi for adjudicion. Vide impugned judgment and order dated 28.04.2010, the Tribunal dismissed the petition filed by petitioner Neena W.P.(C) Nès.6423/2010 & 6113/2010 Page 12 of 32 Shad on the ground that even though facts and circumstances of the case do suggest that a discriminatory treatment was meted out to petitioner Neena Shad, she is not entitled to any relief in view of the fact that the present application is based on the same cause of action as the Writ Petition No.11791/2009 filed by Neena Shad before this Court, which petition stood dismised by this Court. The relevant portion of the impugned judgment is being noted herein under:- "5; Pursuant to notice issued by this Tribunal, the • respondent has entered appearance and filed its reply contesting the claim of the applicant. It is significant to mention that on the basic facts with . regard to employment of the applicant and her husband on contractual basis, the dates of their employment, and employment of others along with the applicant on same terms and conditions, there is no dispute at all. There is no dispute either with • regard to 26 doctors being appointed after appointment of the applicant on same terms and conditions. The applicant, the basic facts as mentioned above, contends that she and her husband have been discriminated. There are hardly any arciuments by the learned counsel representinci the respondent to counter the plea raised by the respondent......... 9. Having heard the applicant and Shri Bhardwaj, learned counsel representing the respondent, we are of the view that even though, the applicant may appear to have a case of discriminatory treatment meted out to •her, but because of her filing writ • petition for the same relief and on the plea of discrimination as well, it would be difficult to give • any relief to her. We are of the firm view that the pleadings with regard to discrimination meted out to the applicant were indeed made in the earlier writ petition filed by her and the relief asked for, in any • case, was the same as has been asked for in the present Application. The mere fact that nothing with • W.P.(C) Nos.6423/2010 & 6113/2010 Page 13 of 32 "I C regard to discrimination came to be referred to by the learned single Judge who dismissed the petition, may not entitle the applicant to file fresh petition for the same cause of action. Even though, as mentioned above, the plea of the applicant is based upon discrimination, the same did not come to be referred to or discussed, but once, it was taken, the applicant ought to have stressed upon the same, and if yet aggrieved, she could seek remedies like review or appeal against the' orders passed by the learned single Judge/Division Bench, but fresh petition on the same plea would be impermissible. We are conscious that by virtue of provisions contained in Section 22 of the Act of 1985, the Tribunal is not bound by the procedure laid down in the Code of Civil Procedure, but, at the same time, as per the provisions contained in the same very section, it shall be guided by the principles of natural justice. Provisions contained in Section 11 CPC are in fact based upon the principle of natural justice that no one can be. vexed twice for the same cause of action. Even if, . therefore, provisions of Section 11 CPC may not be strictly applicable in the present case, principles of natural justice would come in the way of the applicant in asking for any relief having already lost her cause up to the Division Bench of the Hon'ble High Court of Delhi. 12. In view of the