A workman of an Industrial establishment in Maharashtra was dismissed by the employer based on the report of the Internal Committee of the Establishment, constituted under "The Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal )Act 2013.
(1) Which is the appellete authority for the dismissed workman ?
(2) Whether Government of Maharashtra has issued any notification about the Appelete Authority?
From India, Madras
75(1) Which is the appellete authority for the dismissed workman ?
(2) Whether Government of Maharashtra has issued any notification about the Appelete Authority?
From India, Madras
The aggrieved person can file appeal against recommendations of ICC under POSH Law before the Labour Department authority of the state or the central government as the case may be. The aggrieved person may prefer an appeal under Section 18 of the Act to the appellate authority notified under clause (a) of Section 2oftheIndustrial Employment (Standing Orders) Act, 1946, within a period of 90 days of the date of recommendations by the Internal Committee.
From India, Mumbai
From India, Mumbai
Mohanty Sir,
The aggrieved workman appealed before the said authority. The said authority asked him to show the Government notification stating that he has the authority to deal with the appeal case. Such a notification could not be traced by him.
Sexual harassment is now a misconduct under Rule 24(z) of the Maharashtra Industrial Employment (Standing Orders) Rules 1949 applicable to the workman.
The said workan was dismissed based on the report of the internal committee of the industrial establishment without giving him any show cause notice or seeking any explanation. Hence I requested for the Government Notification on Appellete authority under PoSH Act 2013 in Maharashtra.
From India, Madras
The aggrieved workman appealed before the said authority. The said authority asked him to show the Government notification stating that he has the authority to deal with the appeal case. Such a notification could not be traced by him.
Sexual harassment is now a misconduct under Rule 24(z) of the Maharashtra Industrial Employment (Standing Orders) Rules 1949 applicable to the workman.
The said workan was dismissed based on the report of the internal committee of the industrial establishment without giving him any show cause notice or seeking any explanation. Hence I requested for the Government Notification on Appellete authority under PoSH Act 2013 in Maharashtra.
From India, Madras
Kutty,
There is no need to look for the notification, because the workman has remedy to raise an "industrial dispute", challenging his dismissal. The challenge to the report/finding of the ICC would be decided in that dispute itself.
The things would have been different, if the aggrieved woman was to challenge the report/finding of the ICC. In that case only, the notification was needed.
I hope, the above would answer your query.
S. K. Mittal
9319956443
From India, Faridabad
There is no need to look for the notification, because the workman has remedy to raise an "industrial dispute", challenging his dismissal. The challenge to the report/finding of the ICC would be decided in that dispute itself.
The things would have been different, if the aggrieved woman was to challenge the report/finding of the ICC. In that case only, the notification was needed.
I hope, the above would answer your query.
S. K. Mittal
9319956443
From India, Faridabad
{1} The Bombay High Court (“Court”) ruled that it would not interfere with an order of punishment passed by the Internal Complaints Committee (“ICC”) in relation to a sexual harassment complaint, unless the order is shockingly disproportionate. The Court passed this judgment in the case of Vidya Akhave (“Petitioner”) v. Union of India and Ors34 in relation to the new Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 of India (“Sexual Harassment Act”). The Court observed that the employer must sufficiently comply with the duties cast upon it under the Sexual Harassment Act. The Court also stated that (a) an employer must provide for an effective mechanism for prevention of sexual harassment of women at workplace; (b) male employees must be sensitized towards the concerns of female employees and (c) the ICC must deal with complaints of sexual harassment in an expedited manner
{2} The Court referred to its decision in Om Kumar v Union of India36 and reaffirmed the principles of judicial restraint to be exercised by courts under Article 226 of the Constitution. The Court held that unless the Order is shockingly disproportionate to the act of the delinquent employee, it will be circumspect in interfering with the Order. Reiterating the decision of Om Kumar, the Court held that interference is warranted only when there is non–compliance of the principles of administrative law, Wednesbury Principles and doctrine of proportionality by the Disciplinary Authority. As for compliance with the Wednesbury Principles, interference was held to be not permissible unless any of the following conditions were satisfied: (a) the Order was contrary to law, (b) relevant factors were not considered, (c) irrelevant factors were considered and (d) no reasonable person would have taken such a decision Under the principle of proportionality, the Court stated that it would have to be seen whether the legislature and administrative authority maintained a proper balance between the adverse effects which the legislation or order may have on the rights, liberties or interests of persons, keeping in mind the purpose which they were intended to serve. The Court also observed that the inquiry by the Disciplinary Authority was conducted dispassionately and all evidences were appropriately considered and ruled upon in a fair and proper manner. Therefore, the Court was not entitled to give a second opinion merely because it had the discretion to do so. However, the Court felt that there was a need to have an effective mechanism in place at workplaces for addressing issues of sexual harassment of women. The Court also observed that male employees must be made aware of concerns of female employees by undertaking an exercise of gender sensitization as more and more women were becoming part of the national workforce and contributing to the national economy. The Court also remarked as to how many companies, corporations and government undertakings have not complied with the Sexual Harassment Act and do not have an adequate mechanism to deal with issues of sexual harassment.
{3} Kerala High Court, Wp(C).No. 35914 Of 2016 vs By Adv.Sri.J.Om Prakash
From India, Mumbai
{2} The Court referred to its decision in Om Kumar v Union of India36 and reaffirmed the principles of judicial restraint to be exercised by courts under Article 226 of the Constitution. The Court held that unless the Order is shockingly disproportionate to the act of the delinquent employee, it will be circumspect in interfering with the Order. Reiterating the decision of Om Kumar, the Court held that interference is warranted only when there is non–compliance of the principles of administrative law, Wednesbury Principles and doctrine of proportionality by the Disciplinary Authority. As for compliance with the Wednesbury Principles, interference was held to be not permissible unless any of the following conditions were satisfied: (a) the Order was contrary to law, (b) relevant factors were not considered, (c) irrelevant factors were considered and (d) no reasonable person would have taken such a decision Under the principle of proportionality, the Court stated that it would have to be seen whether the legislature and administrative authority maintained a proper balance between the adverse effects which the legislation or order may have on the rights, liberties or interests of persons, keeping in mind the purpose which they were intended to serve. The Court also observed that the inquiry by the Disciplinary Authority was conducted dispassionately and all evidences were appropriately considered and ruled upon in a fair and proper manner. Therefore, the Court was not entitled to give a second opinion merely because it had the discretion to do so. However, the Court felt that there was a need to have an effective mechanism in place at workplaces for addressing issues of sexual harassment of women. The Court also observed that male employees must be made aware of concerns of female employees by undertaking an exercise of gender sensitization as more and more women were becoming part of the national workforce and contributing to the national economy. The Court also remarked as to how many companies, corporations and government undertakings have not complied with the Sexual Harassment Act and do not have an adequate mechanism to deal with issues of sexual harassment.
{3} Kerala High Court, Wp(C).No. 35914 Of 2016 vs By Adv.Sri.J.Om Prakash
From India, Mumbai
Dear Mittal Sir,
The dismissed workman has challenged the Report of the Internal Committee since
he was not given a copy of the complaint,
not his explanation sought or
he was not allowed to cross examine the witnesses of the complainant before the Internal Committee.
Again as per Section 13(3)(i) the the Internal Committee has to recommend sexual harassment as a misconduct in accordance with the provisions of the service rules of the respondent. Section 13 (3) (i) given below.
(3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the
conclusion that the allegation against the respondent has been proved, it shall recommend to the employer
or the District Officer, as the case may be—
(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the
service rules applicable to the respondent or where no such service rules have been made, in such
manner as may be prescribed;
Sexual harassment is a misconduct as per Rule 24(z) of the Maharashtra Industrial Employment (Standing Order) Rules 1959 applicable to the dismissed workman.
As suggested by you, raising industrial dispute against dismissal without following proper disciplinary proceedings will follow through appropriate channel.
From India, Madras
The dismissed workman has challenged the Report of the Internal Committee since
he was not given a copy of the complaint,
not his explanation sought or
he was not allowed to cross examine the witnesses of the complainant before the Internal Committee.
Again as per Section 13(3)(i) the the Internal Committee has to recommend sexual harassment as a misconduct in accordance with the provisions of the service rules of the respondent. Section 13 (3) (i) given below.
(3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the
conclusion that the allegation against the respondent has been proved, it shall recommend to the employer
or the District Officer, as the case may be—
(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the
service rules applicable to the respondent or where no such service rules have been made, in such
manner as may be prescribed;
Sexual harassment is a misconduct as per Rule 24(z) of the Maharashtra Industrial Employment (Standing Order) Rules 1959 applicable to the dismissed workman.
As suggested by you, raising industrial dispute against dismissal without following proper disciplinary proceedings will follow through appropriate channel.
From India, Madras
Dear K C S Kutty,
The remedy is available, in my opinion the dismissed employee must seek the help of a High court advocate or a law firm for his assistance. They will decide, where to challenge the matter i.e. Industrial labour court/tribunal or in any designated court.
From India, Mumbai
The remedy is available, in my opinion the dismissed employee must seek the help of a High court advocate or a law firm for his assistance. They will decide, where to challenge the matter i.e. Industrial labour court/tribunal or in any designated court.
From India, Mumbai
Thanks to Mohanty Sir for your kind guidance. The dismissed employee is not in financially sound and may not be able to afford. We may at our level, extend support when our help or guidance is sought. I take it as a learning process.
From India, Madras
From India, Madras
Dear Mr. KCS Kutty,
I understand your concern for the terminated person from the services in humanitarian ground. There is no issue, we may extend our support, but our support will not be sufficient enough to meet the requirement of the legal fight. There is facility for putting grievance online, the snip shot of the same attached for reference. In my view the person should discuss the whole issue with advocate to know what are the possible remedies are available for him.
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A case citation:
Orissa High Court
Jyoti Prakash vs Internal Appellate Committee on 16 May, 2018
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.242 of 2017
In the matter of application under Article 226 and 227 of the
Constitution of India.
---------
Jyoti Prakash ...... Petitioner
- Versus-
Internal Appellate Committee
and Others ... ..... Opposite Parties
Counsel for Petitioner : M/s. Prashanta Kumar Nayak, S. Mishra, A. K.
Mohapatra, S. N. Dash.
Counsel for Opp.Parties : M/s. A. K. Mishra, S. Subhadarshini;
M/s. D. K. Mishra and P. Behera.
PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
-------------------------------------------------------------------------------------
Date of hearing and judgment: 16.05.2018
------------------------------------------------------------------------------------- S. N. Prasad, J. This writ petition under Article 226 and 227 of the Constitution of India for the following prayers:-
i) As to why the Disciplinary proceeding initiated against the petitioner shall not be quashed;
ii) As to why the order dtd.27.12.2016 passed by the opposite party no.2 under Annexure-9 shall not be quashed.
iii) As to why the inquiry report dtd.30.11.2015 prepared by the Internal Complaints Committee under Annexure-4 shall not be quashed; and
iv) As to why the order dtd.14.7.2016 passed by the Internal Appellate Committee under Annexure-6 shall not be quashed.
2. The brief fact of the case of the petitioner as per pleading made in the writ petition is that the petitioner while working as Deputy Manager at Rourkela Township Branch, Rourkela under the opposite party - Bank, has been subjected to the allegation of sexual harassment by the opposite party no.6 who lodged a complaint against him before the Chief Manager-Branch Manager regarding misbehaviour of the petitioner towards her. The authority has referred the matter before the Internal Complaints Committee, the committee has issued notice to the petitioner, before whom the petitioner has appeared and filed written submission against the allegation stating therein that the same is false, fabricated and there is no evidence to substantiate the aforesaid allegation but the Internal Complaints Committee has submitted report before the competent authority by supplying copy of the same upon the petitioner, who upon its receipt, has objected to it by filing an application before the higher authority rebutting the allegation as also finding given by the internal complaints committee but the higher authority has also not appreciated the objection raised by him, rather confirmed the finding given by the internal complaints committee, in consequence thereof the notice has been issued by the disciplinary authority on 27.12.2016 giving therein the opportunity to file reply with respect to the proposed punishment of imposition of penalty of removal from service and thereafter this writ petition has been filed, inter alia on the ground that before the internal complaints committee no opportunity of hearing has been given, the petitioner has not even been allowed to cross-examine the witnesses, the order has been passed giving the proposed punishment without initiating any regular proceeding as stipulated in the Discipline and Appeal Rule, as such the entire action of the opposite party - Bank is unreasonable and improper, hence not sustainable in the eye of law.
3. The opposite party -Bank as well as the complainant - opposite party no.6 have appeared and contested the case by vehemently arguing and refuted the ground taken by the petitioner by submitting that the internal complaints committee has followed all due procedures as provided under the statutory provision, he has been allowed all adequate and sufficient opportunity and thereafter the allegation of sexual harassment upon opposite party no.6 has been found to be proved, the copy of the enquiry report conducted by the internal complaints committee has been supplied to the petitioner against which he has also made objection before the higher authority but the finding given by the committee has been confirmed and thereafter under the provision of Discipline and Appeal Rule, the disciplinary authority has issued the notice indicating the proposed punishment in order to provide opportunity of hearing to the petitioner and at that stage this writ petition has been filed, as such the writ petition is premature and this court sitting under Article 226 of the constitution of India may not interfere in the stage of notice since the petitioner will have opportunity to raise all the points before the competent authority in his defence.
So far as the allegation of the petitioner that proper opportunity was not given, it has been submitted that all adequate and sufficient opportunity was given by the internal complaints committee and the petitioner has not made any requisition to cross-examine the witnesses, rather as per the principle to follow the principle of natural justice, the same has been followed and thereafter the internal complaints committee has submitted a report, as such it cannot be said that the principle of natural justice has not been followed, moreover even accepting the version of the petitioner that the principle of natural justice has not been followed then also, on that count, the notice dtd.27.12.2016 cannot be interfered at this stage since this point can also be raised by the petitioner at the time of submission of his reply of that and the same will be taken into consideration by the authority.
4. This court has heard the learned counsel for the parties in detail and gone through the pleadings.
Before entering into the issue involved it would be relevant to discuss regarding the enactment known as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the Act, 2013).
It needs to refer the background before the enactment of the Act, 2013. In order to tackle the problem of sexual harassment, the Ministry of Women and Child Development, by a notification dtd.9.12.2013 passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which became effective from December 9, 2013. The Ministry also made the rules with regard to the same effective from the same date. These rules are called the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (herein after referred to as the Rules, 2013).
The Act to prevent incident of sexual harassment at workplace was enacted in pursuance to the judgment rendered by Hon‟ble Supreme Court in the case of Vishaka and Others Vrs. State of Rajasthan and others reported in 1997 (7) SCC 323 wherein the Hon‟ble Apex Court has been pleased to hold that sexual harassment at workplace is violative of constitutional rights of the women (including rights of equality, practice any progression and to right to life with dignity) and are discriminatory towards women. In the absence of safeguard, the court stated that an effective alternative mechanism was needed to prevent violation of these fundamental rights in the work place and to address the issue and to fill the legislative vacancy, the Hon‟ble Supreme Court has also led certain guidelines which made it mandatory for every employer to provide for a mechanism to redress grievances relating to sexual harassment at workplace.
The Hon‟ble Apex Court also in the case of Medha Kotwal Lele & Ors. Vrs. Union of India & Ors. reported in AIR 2013 SC 93 stated that the Visakha guidelines had to be implemented in sum, substances and spirit in order to bring gender parity by ensuring women at workplace with dignity, decency and due respect. Thereafter ultimately the enactment has been done by virtue of the Act, 2013 and Rules, 2013.
In the aforesaid Act, the sexual harassment, employer, workplace has been defined along with the method to file complaint and the relief to be given to the victim. In the aforesaid Act there is provision to constitute an internal committee and complaint is to be made under the provision of section 9 and after the said complaint an opportunity for conciliation as per the provision contained in Section 10 is to be given to the parties and in case of failure the enquiry is to be made by the internal complaints committee under the provision of section 11 of the Act, 2013. The enquiry report is to be submitted in pursuance to the provision made U/s.13 of the Act and there is also provision of appeal if person is aggrieved from the recommendation made by the internal enquiry committee under the provision of section 18 and simultaneously the duties of the employer has also been provided therein.
The Rules, 2013 has also been enacted to deal with such situation. For the present case the provision of section 11, 13, 18, 19 and 28 of the Act, 2013 as also the provision of Rule 9 of Rules, 2013 are relevant, as such the same are being referred herein below:-
"11. Inquiry into complaint.-(1) Subject to the provisions of section I0, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make t inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code, and any other relevant provisions of the said Code where applicable:
Provided that where the aggrieved woman informs the Internal Committee or the Local Committee, as the case may be, that any term or condition of the settlement arrived at under sub-section (2) of section I0 has not been complied with by the respondent, the Internal Committee or the Local Committee shall proceed to make an inquiry into the complaint or, as the case may be, forward the complaint to the police:
Provided further that where both the parties arc employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee.
(2) Notwithstanding anything contained in section 509 of the Indian Penal Code, the court may, when the respondent is convicted of the offence, order payment of such sums as it may consider appropriate, to the aggrieved woman by the respondent, having regard to the provisions of section I5.
(3) For the purpose of making an inquiry under sub-section(1), the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents; and
(c) any other matter which may be prescribed.
(4.) The inquiry under sub-section (1) shall be completed within a period of ninety days.
13. Inquiry report.- (1)On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period often days from the date of completion of the inquiry and such report be made available to the concerned parties.
(2) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter.
(3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be-
(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;
(ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of Section 15:
Provided that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman:
Provided further that in case the respondent fails to pay the sum referred to in clause (ii), the Internal Committee or, as the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.
(4) The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him.
18. Appeal.- (1) Any person aggrieved from the recommendations made under sub-section (2) of section 13 or under clause (i) or clause (ii) of sub-section (3) of section 13 or subsection (1) or sub-section (2) of section 14 or section 17 or non-implementation of such recommendations may prefer an appeal to the court or tribunal in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist then, without prejudice to provisions contained in any other law for the time being in force, the person aggrieved may prefer an appeal in such manner as may be prescribed.
(2)The appeal under sub-section (1) shall be preferred within a period of ninety days of the recommendations.
19. Duties of employer.--Every employer shall-
(a) provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;
(b) display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under subsection (1) of Section 4;
(c) organize workshops and awareness programmes at regular intervals for sensitizing the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;
(d) provide necessary facilities to the internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;
(e) assist in securing the attendance of respondent and witnesses before the internal Committee or the Local Committee, as the case may be;
(f) make available such information to the Internal Committee or the Local Committee, as the case may be, as it may require having regard to the complaint made under sub-section (1) of Section 9;
(g) provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force;
(h) cause to initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;
(i) treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
(j) monitor the timely submission of reports by the Internal Committee.
28. Act not in derogation of any other law.- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
Rule 9 of Rules, 2013
9. Manner of taking action for sexual harassment.- Except in cases where service rules exist, where the Complaints Committee arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be, to take any action including a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments terminating the respondent from service or undergoing a counseling session or carrying out community service."
It is evident from the provision as contained in section 11 that subject to the provisions of section 10, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within period of seven days for registering the case under section 509 of the Indian Penal Code, and any other relevant provisions of the said Code.
The second proviso stipulates that where both the parties arc employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee.
Section 13 stipulates the provision after submission of the enquiry report conferring power upon the employer to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed.
Section 19 confers duties of the employer wherein subsection (i) which stipulates to treat sexual harassment as a misconduct under service rule and initiate action for such misconduct.
Rule 9 of Rules, 2013 contains provision with respect to such condition where service rule does not exists and if the complaint committee arrives at the conclusion that the allegation has been proved, it shall recommend to the employer or the district officer, as the case may be, to take any action including written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service or undergoing a counseling session or carrying out community service.
It is evident from bare reading of section 11 and 13 that section 11 deals with the position before initiation of enquiry while section 13 deals with the situation after conclusion and submission of the enquiry report by the internal complaints committee.
Section 11 stipulates that the internal complaints committee is to proceed to make enquiry into the complaints in accordance with the provision of service rule applicable to the respondent, meaning thereby enquiry is to be conducted as provided under the provision of Discipline and Appeal Rule applicable to the concerned employee against whom the enquiry has been initiated.
While section 13 stipulates that in case the internal committee has came to conclusion that the allegation of sexual harassment is found to be true, recommendation is to be made to the employer to take action for sexual harassment as a misconduct in accordance with the provision of service rules applicable, meaning thereby in case of the allegation having found to be true, the recommendation would be made by the internal complaints committee treating the sexual harassment as misconduct and to take action in pursuance to the service rule, which suggests that the sexual harassment will be treated as misconduct and thereafter the proceeding is to be initiated as per the service rule applicable for imposing the punishment.
This can also be taken note from the provision of section 19(i) which stipulates that treat sexual harassment as a misconduct under the service rule and initiate action for such misconduct, meaning thereby when there is stipulation to initiate action for such misconduct, the implied meaning of the same would be a proceeding is to be initiated against the concerned employee under the Discipline and Appeal Rule applicable.
This also further been clarified from the provision of Rule 9 of the Rules, 2013 which is concerned with the situation where there is no service rule exists, the warding is „to take any action‟ and there is no stipulation to „initiate action‟ and there is difference in between the warding "to take action" and "to initiate action", to take action means the action is to be taken by the authority but to initiate action means that the action is to be initiated under the Discipline and Appeal Rule where the service rule exists.
Now it is to be seen that what is the service rule for imposing the punishment which has been proposed, i.e. with respect to removal from service and it is evident that the Discipline and Appeal Rule provides for imposing penalty as enshrined under the provision of rule 67 which contains under the heading „Miner Penalties‟ and „Major Penalties‟. Under the heading of „Major Penalty‟ removal from service is found mentioned.
The provision of Rule 68 provides the process to initiate minor or major punishment. For imposing major punishment the procedure is to frame definite and distinct charge on the basis of the allegation against the officer and the article of charge together with the statement of the allegation on which they are based.
5. The petitioner contends herein by raising two grievances;
i) That before the internal complaint committee he has not be afforded with adequate opportunity; and
ii) That the show cause notice dtd.27.12.2016 is not sustainable since it contains the proposed punishment without following the procedure to impose major punishment as enshrined under the provision of discipline and appeal rule under Rule 68 of the aforesaid rule.
6. So far as the first ground is concerned, it is evident from the material available on record that on the basis of the complaint submitted by opposite party no.6 as under Annexure-1 duly been signed by other co- employees working in the aforesaid bank, basis upon which the matter was taken up by the internal complaints committee, while accepting it, notice has been issued to the petitioner along with the copy of the complaint which has been replied, as would be evident from Annexure-2 dtd.4.9.2015 whereby and where under it has been stated that the entire allegation is false, fabricated and malicious and pre-designed and also sought for relevant documents. Thereafter the petitioner has submitted a full-fledged response denying each and every allegation vide his defence reply dtd.7.11.2015.
The internal complaints committee has proceeded with the enquiry in presence of the petitioner, summoned the witnesses and recorded their depositions. The witnesses are the co-employees working under the aforesaid branch. The internal complaints committee has given a summery finding stating therein that the charges leveled against the petitioner is supported by evidence and the statements of the witnesses indicates that charges to be true. None of the lady employee of the branch would feel secure to work with him as a colleague, accordingly opined that the complainant‟s case comes under the case of sexual harassment and recommend for appropriate action against the petitioner in accordance with the provisions of the service rules applicable.
The petitioner thereafter has made a protest against the aforesaid finding as would be evident from annexure-5 by filing an application before the appropriate authority which although has been treated as an appeal against the report submitted by the internal complaints committee and has been disposed of confirming the fact finding given by the Internal Complaints Committee observing therein that the enquiry has been conducted as per the provisions of the SBI Officers Service Rule after providing him ample opportunity to defend himself against the allegation and thereafter the petitioner has also filed review to recall the aforesaid order of the appellate authority as also the finding given by the internal complaints committee and also represented before The General Manager and thereafter the notice dtd.27.12.2016 has been issued upon considering the record of the enquiry proposing therein to impose penalty of removal from service in terms of Rule 67(1) of SBI Officers Service Rule, calling upon to appear before the undersigned on 3.1.2017 for personal hearing and / or to make submission if any and at that juncture this writ petition has been filed.
So far as the contention of the petitioner to provide an opportunity of hearing before the internal complaints committee, it is evident from the provision as contains in section 11 which is subject to the provision of section 10 the committee will proceed to make enquiry with the complaint in accordance with the provision of service rules applicable to the respondent, meaning thereby on the basis of a compliant the enquiry would be conducted by the internal complaints committee in accordance with the provisions of service rule.
This court, after going through the applicable service rule, has only found which is not in dispute that the service rule does not provide the process to conduct an enquiry rather the only process under the service rule is to inflict punishment after following the procedure as provided under Rule 68 of the service rule.
The provision of section 11 speaks regarding the applicability of the service rules for conducting enquiry under the provision of the Act, 2013 but since it is not available under the applicable service rule, as such this court is only to see as to whether the principle of natural justice has been followed before coming to a finding or not.
This court has gather after going through the material available on record which has been annexed by the petitioner to the effect that after service of copy of the complaint the petitioner has given detail reply in his defence and after considering it the statement of the employees working in the aforesaid branch has been recorded and thereafter the enquiry report has been submitted by the internal complaints committee.
This court finds that the internal complaints committee is of the opinion with respect to the allegation of sexual harassment which is found to be true and therefore recommending for appropriate action against the respondent in accordance with the provision of the service rule applicable. The relevant part of the finding given by the internal enquiry committee is being referred herein below:-
"Summary of the Findings:- The charges alleged against the respondent be supported by evidence but the statements of the witness indicates that charges to be true.
None of the lady employees of the branch would fee secure to work under / with him as a colleague.
Besides the complainant every lady employee (witness) has own experience to share where she has faced personal remark on attire, looks, favoured language, unprofessional talk and behavior.
Even though he denies the words in his palm were not meant for the complainant, he accepts that he has made mistake to other colleagues and requests for others interference for compromise, indicates that the charges by complainant to be true.
From all the above findings the Internal Complaint Committee is of the opinion that the complaint case comes under the case of sexual harassment and recommend for appropriate action against the respondent in accordance with the provisions in the service rules applicable the appropriate authority."
Thus it can be said herein that since the recommendation is to take appropriate action in accordance with the service rule, which suggests that it is only a fact finding enquiry and it is settled position of law that in the fact finding enquiry only the requirement is to give show cause apprising the delinquent employee who is to be proceeded or not to be proceeded, is to give his reply to the draft charges and only after scrutiny of the reply the decision is to be taken by the competent authority as to whether the charge as has been leveled against such employee is relevant for the purpose of initiating a department proceeding or not and in the case of fact finding enquiry there is no occasion or also there is no provision to provide an opportunity to cross examine the witnesses. The matter would have been different if the enquiry report which has been submitted by the internal complaints committee would have submitted a report by proving the charge with the recommendation to inflict punishment without following the provision as stipulated in the applicable service rule, but that is not the case herein, rather the Internal Complaints Committee has recommended after coming to the finding of proving of the charge of sexual harassment after recording the deposition of the co- employees working under the branch in question to initiate action in accordance with the provision of the serve rule.
Furthermore, the implication of Section 11 is also there if the decision to be taken for instituting a criminal case by forwarding complaint before the police, thus section 11 implies for conducting enquiry and institution of criminal case.
Further if the authority is not willing to refer the complaint before the police rather taken decision to initiate action for imposing punishment under service rule, then it will govern by Section 13, as such Section 11 does not attract an opportunity to be provided to cross examine the witnesses, it is for the reason that if complaint would be referred before police, it will lead to criminal trial and thee the person will get an opportunity as per the provision of Code of Criminal Procedure. The same will be applicable regarding opportuynity if decided to initiate action as per service rule, the process as per Discipline and Appeal Rule is to be followed, as such the first ground raised by the petitioner that in view of the provision of section 11 of the Act, 2013 the principle of natural justice has not been followed is not having any substance and accordingly rejected.
9. So far as the second ground is concerned it is to be stated herein that after submission of the internal inquiry report as stipulated under the provision of section 13 of the Act, 2013 wherein under sub-section 13(1) the stipulation made therein to the effect that "to take action for sexual harassment as a misconduct in accordance with the provisions of the service rule applicable to the respondent or where no such service rule has been made in such manner as may be prescribed." This provision has also been read out along with the provision of section 19(i) of the Act, 2013 which stipulates "treat sexual harassment as a misconduct under the service and initiate action for such misconduct". These two provisions is to be read along with the provision of Rule 9 of the Rules, 2013 which speaks "except in cases where service rule exists, where the complaints committee arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the district officer, as the case may be, to take any action including a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service or undergoing a counselling session or carrying out community service."
It is evident from the aforesaid provision that this rule is made for category of employees for whom there is no service rule exists and for such category of employee in case of proving of charge of allegation of sexual harassment, the stipulation made therein to take any action, there is different in between the provision of section 19(i) and Rule 9 while under the provision of Section 19(i) the stipulation made therein to initiate action for such misconduct by treating sexual harassment as a misconduct for such category of employee for whom the service rule is applicable but for such category of employee for whom the service rule is not there the provision of Rule 9 of Rules, 2013 stipulates to take any action, as such for the category of such employee for whom service rules exists, the action is to be initiated under the service rule but for such category of employees for whom the service rule is not there, action is to be taken and there is material difference in between the words „to initiate action‟ and „to take action‟.
„To initiate action‟ as per the service rules denotes to initiate a regular proceeding in case of imposition of punishment either minor or major as provided under the service rule while „to take any action‟ depends upon the authority as has been conferred upon them by virtue of the provision of Rule 9 of Rules, 2013.
Further it is evident from the provision of section 13(1) where the wording is to take action for sexual harassment as a misconduct in accordance with the provision of service rule applicable, meaning thereby the sexual harassment since is not under the fold of misconduct in the service rule and when on the basis of the finding given by the internal complaints committee it is found to be true, then it will be treated as misconduct and thereafter to take action in accordance with the provision of service rule, meaning thereby the imposition of punishment is to be taken in terms of the service rule applicable.
It is also relevant to state herein that if only on the basis of the finding given by the internal complaints committee if an employee working in the establishment found to be involved in the allegation of sexual harassment, if inflicted with the major punishment, then it will be said to be contrary to the service rule and the same will be in the teeth of the Article 311(2) of the Constitution of India since in the Discipline and Appeal Rule, where the process has been formulated to inflict minor or major punishment, has been provided with the provision in terms of the intent of the provision as contained in Article 311(2) of the Constitution of India and if the stand of the opposite party - Bank or the opposite party no.6 will be treated to be true that the second show cause notice with the proposed punishment which is impugned in this writ petition has got no infirmity, then in that situation it will be said that there is violation of the principle as laid down under Article 311(2) of the Constitution of India read with Discipline and Appeal Rule applicable to the petitioner.
It is also to be state here that the wording made under section 13(1) is of a misconduct and not of the proven misconduct, meaning thereby misconduct if found to be arrived at by the internal complaints committee, the same is to be dealt with by initiating a regular proceeding as applicable under the Discipline and Appeal Rule.
10. In the backdrop of this factual aspect, now it is to be seen the legality and propriety of the order impugned which is with the proposed punishment.
It is not in dispute that the proposed punishment is only issued after the finding given by the enquiry report forwarded before the disciplinary authority who, accepting it, issues the proposed punishment by way of second show cause notice, thus the second show cause notice is to be issued after conclusion of enquiry.
The Bank, presuming the report submitted by the internal complaints committee as enquiry report under the Discipline and Appeal Rule, has issued the impugned proposed show cause notice. As has been stated herein above that in the Act, 2013 there are two parts, Section 11 deals with the duty of the internal complaints committee to conduct an enquiry and it can be submitted before the police by way of a complaint if intended to take criminal action or can be submitted before the disciplinary authority for dealing with such employees under the Discipline and Appeal Rule which is under Section 13 of the Act, 2013.
In view thereof the report submitted by the internal complaints committee in view of section 11 cannot be said to be an enquiry report in terms of section 13 to be treated as enquiry report under the provision of Discipline and Appeal Rule and since it is not an enquiry report to be treated U/s.13 as enquiry report, the proposed punishment which is impugned in this writ petition treating the enquiry report submitted under the provision of Section 11 will be said to be an improper decision of the authority since that stage has not yet come because as yet the proceeding has not been initiated as contemplated under the provision of Section 19(i) of the Act, 2013 and in view thereof the notice cannot be held to be sustainable in the eye of law.
11. This court while discussing the facts in detail herein above, has found that the impugned notice issued on 27.12.2016 is in the teeth of the recommendation made by the internal committee whereby and where under it has been recommended for appropriate action against the respondent in accordance with the provision of the service rule and certainly the service rule to inflict major punishment for removal from service contains a procedure under the provision of Rule 68, as such the punishment which has been proposed for removal from service in terms of Rule 67(1) of SBI Officers‟ Service Rule can only be inflicted and will be said to be in accordance with service rule if followed by the procedure laid down U/s.68 of the aforesaid rule.
In view thereof the impugned notice dtd.27.12.2016 is not sustainable in the eye of law, accordingly quashed.
12. In the result the matter is remitted before the disciplinary authority of the petitioner to initiate a proceeding as per the applicable Discipline and Appeal Rule and conclude the same within the period as per the stipulation made under the provision of Act, 2013.
With the above observation and directions the writ petition stands disposed of.
...................
S.N.Prasad, J.
Orissa High Court, Cuttack, Dated the 16th May, 2018 / Manas.
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A case citation:
Orissa High Court
Jyoti Prakash vs Internal Appellate Committee on 16 May, 2018
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.242 of 2017
In the matter of application under Article 226 and 227 of the
Constitution of India.
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Jyoti Prakash ...... Petitioner
- Versus-
Internal Appellate Committee
and Others ... ..... Opposite Parties
Counsel for Petitioner : M/s. Prashanta Kumar Nayak, S. Mishra, A. K.
Mohapatra, S. N. Dash.
Counsel for Opp.Parties : M/s. A. K. Mishra, S. Subhadarshini;
M/s. D. K. Mishra and P. Behera.
PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment: 16.05.2018
------------------------------------------------------------------------------------- S. N. Prasad, J. This writ petition under Article 226 and 227 of the Constitution of India for the following prayers:-
i) As to why the Disciplinary proceeding initiated against the petitioner shall not be quashed;
ii) As to why the order dtd.27.12.2016 passed by the opposite party no.2 under Annexure-9 shall not be quashed.
iii) As to why the inquiry report dtd.30.11.2015 prepared by the Internal Complaints Committee under Annexure-4 shall not be quashed; and
iv) As to why the order dtd.14.7.2016 passed by the Internal Appellate Committee under Annexure-6 shall not be quashed.
2. The brief fact of the case of the petitioner as per pleading made in the writ petition is that the petitioner while working as Deputy Manager at Rourkela Township Branch, Rourkela under the opposite party - Bank, has been subjected to the allegation of sexual harassment by the opposite party no.6 who lodged a complaint against him before the Chief Manager-Branch Manager regarding misbehaviour of the petitioner towards her. The authority has referred the matter before the Internal Complaints Committee, the committee has issued notice to the petitioner, before whom the petitioner has appeared and filed written submission against the allegation stating therein that the same is false, fabricated and there is no evidence to substantiate the aforesaid allegation but the Internal Complaints Committee has submitted report before the competent authority by supplying copy of the same upon the petitioner, who upon its receipt, has objected to it by filing an application before the higher authority rebutting the allegation as also finding given by the internal complaints committee but the higher authority has also not appreciated the objection raised by him, rather confirmed the finding given by the internal complaints committee, in consequence thereof the notice has been issued by the disciplinary authority on 27.12.2016 giving therein the opportunity to file reply with respect to the proposed punishment of imposition of penalty of removal from service and thereafter this writ petition has been filed, inter alia on the ground that before the internal complaints committee no opportunity of hearing has been given, the petitioner has not even been allowed to cross-examine the witnesses, the order has been passed giving the proposed punishment without initiating any regular proceeding as stipulated in the Discipline and Appeal Rule, as such the entire action of the opposite party - Bank is unreasonable and improper, hence not sustainable in the eye of law.
3. The opposite party -Bank as well as the complainant - opposite party no.6 have appeared and contested the case by vehemently arguing and refuted the ground taken by the petitioner by submitting that the internal complaints committee has followed all due procedures as provided under the statutory provision, he has been allowed all adequate and sufficient opportunity and thereafter the allegation of sexual harassment upon opposite party no.6 has been found to be proved, the copy of the enquiry report conducted by the internal complaints committee has been supplied to the petitioner against which he has also made objection before the higher authority but the finding given by the committee has been confirmed and thereafter under the provision of Discipline and Appeal Rule, the disciplinary authority has issued the notice indicating the proposed punishment in order to provide opportunity of hearing to the petitioner and at that stage this writ petition has been filed, as such the writ petition is premature and this court sitting under Article 226 of the constitution of India may not interfere in the stage of notice since the petitioner will have opportunity to raise all the points before the competent authority in his defence.
So far as the allegation of the petitioner that proper opportunity was not given, it has been submitted that all adequate and sufficient opportunity was given by the internal complaints committee and the petitioner has not made any requisition to cross-examine the witnesses, rather as per the principle to follow the principle of natural justice, the same has been followed and thereafter the internal complaints committee has submitted a report, as such it cannot be said that the principle of natural justice has not been followed, moreover even accepting the version of the petitioner that the principle of natural justice has not been followed then also, on that count, the notice dtd.27.12.2016 cannot be interfered at this stage since this point can also be raised by the petitioner at the time of submission of his reply of that and the same will be taken into consideration by the authority.
4. This court has heard the learned counsel for the parties in detail and gone through the pleadings.
Before entering into the issue involved it would be relevant to discuss regarding the enactment known as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the Act, 2013).
It needs to refer the background before the enactment of the Act, 2013. In order to tackle the problem of sexual harassment, the Ministry of Women and Child Development, by a notification dtd.9.12.2013 passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which became effective from December 9, 2013. The Ministry also made the rules with regard to the same effective from the same date. These rules are called the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (herein after referred to as the Rules, 2013).
The Act to prevent incident of sexual harassment at workplace was enacted in pursuance to the judgment rendered by Hon‟ble Supreme Court in the case of Vishaka and Others Vrs. State of Rajasthan and others reported in 1997 (7) SCC 323 wherein the Hon‟ble Apex Court has been pleased to hold that sexual harassment at workplace is violative of constitutional rights of the women (including rights of equality, practice any progression and to right to life with dignity) and are discriminatory towards women. In the absence of safeguard, the court stated that an effective alternative mechanism was needed to prevent violation of these fundamental rights in the work place and to address the issue and to fill the legislative vacancy, the Hon‟ble Supreme Court has also led certain guidelines which made it mandatory for every employer to provide for a mechanism to redress grievances relating to sexual harassment at workplace.
The Hon‟ble Apex Court also in the case of Medha Kotwal Lele & Ors. Vrs. Union of India & Ors. reported in AIR 2013 SC 93 stated that the Visakha guidelines had to be implemented in sum, substances and spirit in order to bring gender parity by ensuring women at workplace with dignity, decency and due respect. Thereafter ultimately the enactment has been done by virtue of the Act, 2013 and Rules, 2013.
In the aforesaid Act, the sexual harassment, employer, workplace has been defined along with the method to file complaint and the relief to be given to the victim. In the aforesaid Act there is provision to constitute an internal committee and complaint is to be made under the provision of section 9 and after the said complaint an opportunity for conciliation as per the provision contained in Section 10 is to be given to the parties and in case of failure the enquiry is to be made by the internal complaints committee under the provision of section 11 of the Act, 2013. The enquiry report is to be submitted in pursuance to the provision made U/s.13 of the Act and there is also provision of appeal if person is aggrieved from the recommendation made by the internal enquiry committee under the provision of section 18 and simultaneously the duties of the employer has also been provided therein.
The Rules, 2013 has also been enacted to deal with such situation. For the present case the provision of section 11, 13, 18, 19 and 28 of the Act, 2013 as also the provision of Rule 9 of Rules, 2013 are relevant, as such the same are being referred herein below:-
"11. Inquiry into complaint.-(1) Subject to the provisions of section I0, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make t inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code, and any other relevant provisions of the said Code where applicable:
Provided that where the aggrieved woman informs the Internal Committee or the Local Committee, as the case may be, that any term or condition of the settlement arrived at under sub-section (2) of section I0 has not been complied with by the respondent, the Internal Committee or the Local Committee shall proceed to make an inquiry into the complaint or, as the case may be, forward the complaint to the police:
Provided further that where both the parties arc employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee.
(2) Notwithstanding anything contained in section 509 of the Indian Penal Code, the court may, when the respondent is convicted of the offence, order payment of such sums as it may consider appropriate, to the aggrieved woman by the respondent, having regard to the provisions of section I5.
(3) For the purpose of making an inquiry under sub-section(1), the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents; and
(c) any other matter which may be prescribed.
(4.) The inquiry under sub-section (1) shall be completed within a period of ninety days.
13. Inquiry report.- (1)On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period often days from the date of completion of the inquiry and such report be made available to the concerned parties.
(2) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter.
(3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be-
(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;
(ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of Section 15:
Provided that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman:
Provided further that in case the respondent fails to pay the sum referred to in clause (ii), the Internal Committee or, as the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.
(4) The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him.
18. Appeal.- (1) Any person aggrieved from the recommendations made under sub-section (2) of section 13 or under clause (i) or clause (ii) of sub-section (3) of section 13 or subsection (1) or sub-section (2) of section 14 or section 17 or non-implementation of such recommendations may prefer an appeal to the court or tribunal in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist then, without prejudice to provisions contained in any other law for the time being in force, the person aggrieved may prefer an appeal in such manner as may be prescribed.
(2)The appeal under sub-section (1) shall be preferred within a period of ninety days of the recommendations.
19. Duties of employer.--Every employer shall-
(a) provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;
(b) display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under subsection (1) of Section 4;
(c) organize workshops and awareness programmes at regular intervals for sensitizing the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;
(d) provide necessary facilities to the internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;
(e) assist in securing the attendance of respondent and witnesses before the internal Committee or the Local Committee, as the case may be;
(f) make available such information to the Internal Committee or the Local Committee, as the case may be, as it may require having regard to the complaint made under sub-section (1) of Section 9;
(g) provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force;
(h) cause to initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;
(i) treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
(j) monitor the timely submission of reports by the Internal Committee.
28. Act not in derogation of any other law.- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
Rule 9 of Rules, 2013
9. Manner of taking action for sexual harassment.- Except in cases where service rules exist, where the Complaints Committee arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be, to take any action including a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments terminating the respondent from service or undergoing a counseling session or carrying out community service."
It is evident from the provision as contained in section 11 that subject to the provisions of section 10, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within period of seven days for registering the case under section 509 of the Indian Penal Code, and any other relevant provisions of the said Code.
The second proviso stipulates that where both the parties arc employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee.
Section 13 stipulates the provision after submission of the enquiry report conferring power upon the employer to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed.
Section 19 confers duties of the employer wherein subsection (i) which stipulates to treat sexual harassment as a misconduct under service rule and initiate action for such misconduct.
Rule 9 of Rules, 2013 contains provision with respect to such condition where service rule does not exists and if the complaint committee arrives at the conclusion that the allegation has been proved, it shall recommend to the employer or the district officer, as the case may be, to take any action including written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service or undergoing a counseling session or carrying out community service.
It is evident from bare reading of section 11 and 13 that section 11 deals with the position before initiation of enquiry while section 13 deals with the situation after conclusion and submission of the enquiry report by the internal complaints committee.
Section 11 stipulates that the internal complaints committee is to proceed to make enquiry into the complaints in accordance with the provision of service rule applicable to the respondent, meaning thereby enquiry is to be conducted as provided under the provision of Discipline and Appeal Rule applicable to the concerned employee against whom the enquiry has been initiated.
While section 13 stipulates that in case the internal committee has came to conclusion that the allegation of sexual harassment is found to be true, recommendation is to be made to the employer to take action for sexual harassment as a misconduct in accordance with the provision of service rules applicable, meaning thereby in case of the allegation having found to be true, the recommendation would be made by the internal complaints committee treating the sexual harassment as misconduct and to take action in pursuance to the service rule, which suggests that the sexual harassment will be treated as misconduct and thereafter the proceeding is to be initiated as per the service rule applicable for imposing the punishment.
This can also be taken note from the provision of section 19(i) which stipulates that treat sexual harassment as a misconduct under the service rule and initiate action for such misconduct, meaning thereby when there is stipulation to initiate action for such misconduct, the implied meaning of the same would be a proceeding is to be initiated against the concerned employee under the Discipline and Appeal Rule applicable.
This also further been clarified from the provision of Rule 9 of the Rules, 2013 which is concerned with the situation where there is no service rule exists, the warding is „to take any action‟ and there is no stipulation to „initiate action‟ and there is difference in between the warding "to take action" and "to initiate action", to take action means the action is to be taken by the authority but to initiate action means that the action is to be initiated under the Discipline and Appeal Rule where the service rule exists.
Now it is to be seen that what is the service rule for imposing the punishment which has been proposed, i.e. with respect to removal from service and it is evident that the Discipline and Appeal Rule provides for imposing penalty as enshrined under the provision of rule 67 which contains under the heading „Miner Penalties‟ and „Major Penalties‟. Under the heading of „Major Penalty‟ removal from service is found mentioned.
The provision of Rule 68 provides the process to initiate minor or major punishment. For imposing major punishment the procedure is to frame definite and distinct charge on the basis of the allegation against the officer and the article of charge together with the statement of the allegation on which they are based.
5. The petitioner contends herein by raising two grievances;
i) That before the internal complaint committee he has not be afforded with adequate opportunity; and
ii) That the show cause notice dtd.27.12.2016 is not sustainable since it contains the proposed punishment without following the procedure to impose major punishment as enshrined under the provision of discipline and appeal rule under Rule 68 of the aforesaid rule.
6. So far as the first ground is concerned, it is evident from the material available on record that on the basis of the complaint submitted by opposite party no.6 as under Annexure-1 duly been signed by other co- employees working in the aforesaid bank, basis upon which the matter was taken up by the internal complaints committee, while accepting it, notice has been issued to the petitioner along with the copy of the complaint which has been replied, as would be evident from Annexure-2 dtd.4.9.2015 whereby and where under it has been stated that the entire allegation is false, fabricated and malicious and pre-designed and also sought for relevant documents. Thereafter the petitioner has submitted a full-fledged response denying each and every allegation vide his defence reply dtd.7.11.2015.
The internal complaints committee has proceeded with the enquiry in presence of the petitioner, summoned the witnesses and recorded their depositions. The witnesses are the co-employees working under the aforesaid branch. The internal complaints committee has given a summery finding stating therein that the charges leveled against the petitioner is supported by evidence and the statements of the witnesses indicates that charges to be true. None of the lady employee of the branch would feel secure to work with him as a colleague, accordingly opined that the complainant‟s case comes under the case of sexual harassment and recommend for appropriate action against the petitioner in accordance with the provisions of the service rules applicable.
The petitioner thereafter has made a protest against the aforesaid finding as would be evident from annexure-5 by filing an application before the appropriate authority which although has been treated as an appeal against the report submitted by the internal complaints committee and has been disposed of confirming the fact finding given by the Internal Complaints Committee observing therein that the enquiry has been conducted as per the provisions of the SBI Officers Service Rule after providing him ample opportunity to defend himself against the allegation and thereafter the petitioner has also filed review to recall the aforesaid order of the appellate authority as also the finding given by the internal complaints committee and also represented before The General Manager and thereafter the notice dtd.27.12.2016 has been issued upon considering the record of the enquiry proposing therein to impose penalty of removal from service in terms of Rule 67(1) of SBI Officers Service Rule, calling upon to appear before the undersigned on 3.1.2017 for personal hearing and / or to make submission if any and at that juncture this writ petition has been filed.
So far as the contention of the petitioner to provide an opportunity of hearing before the internal complaints committee, it is evident from the provision as contains in section 11 which is subject to the provision of section 10 the committee will proceed to make enquiry with the complaint in accordance with the provision of service rules applicable to the respondent, meaning thereby on the basis of a compliant the enquiry would be conducted by the internal complaints committee in accordance with the provisions of service rule.
This court, after going through the applicable service rule, has only found which is not in dispute that the service rule does not provide the process to conduct an enquiry rather the only process under the service rule is to inflict punishment after following the procedure as provided under Rule 68 of the service rule.
The provision of section 11 speaks regarding the applicability of the service rules for conducting enquiry under the provision of the Act, 2013 but since it is not available under the applicable service rule, as such this court is only to see as to whether the principle of natural justice has been followed before coming to a finding or not.
This court has gather after going through the material available on record which has been annexed by the petitioner to the effect that after service of copy of the complaint the petitioner has given detail reply in his defence and after considering it the statement of the employees working in the aforesaid branch has been recorded and thereafter the enquiry report has been submitted by the internal complaints committee.
This court finds that the internal complaints committee is of the opinion with respect to the allegation of sexual harassment which is found to be true and therefore recommending for appropriate action against the respondent in accordance with the provision of the service rule applicable. The relevant part of the finding given by the internal enquiry committee is being referred herein below:-
"Summary of the Findings:- The charges alleged against the respondent be supported by evidence but the statements of the witness indicates that charges to be true.
None of the lady employees of the branch would fee secure to work under / with him as a colleague.
Besides the complainant every lady employee (witness) has own experience to share where she has faced personal remark on attire, looks, favoured language, unprofessional talk and behavior.
Even though he denies the words in his palm were not meant for the complainant, he accepts that he has made mistake to other colleagues and requests for others interference for compromise, indicates that the charges by complainant to be true.
From all the above findings the Internal Complaint Committee is of the opinion that the complaint case comes under the case of sexual harassment and recommend for appropriate action against the respondent in accordance with the provisions in the service rules applicable the appropriate authority."
Thus it can be said herein that since the recommendation is to take appropriate action in accordance with the service rule, which suggests that it is only a fact finding enquiry and it is settled position of law that in the fact finding enquiry only the requirement is to give show cause apprising the delinquent employee who is to be proceeded or not to be proceeded, is to give his reply to the draft charges and only after scrutiny of the reply the decision is to be taken by the competent authority as to whether the charge as has been leveled against such employee is relevant for the purpose of initiating a department proceeding or not and in the case of fact finding enquiry there is no occasion or also there is no provision to provide an opportunity to cross examine the witnesses. The matter would have been different if the enquiry report which has been submitted by the internal complaints committee would have submitted a report by proving the charge with the recommendation to inflict punishment without following the provision as stipulated in the applicable service rule, but that is not the case herein, rather the Internal Complaints Committee has recommended after coming to the finding of proving of the charge of sexual harassment after recording the deposition of the co- employees working under the branch in question to initiate action in accordance with the provision of the serve rule.
Furthermore, the implication of Section 11 is also there if the decision to be taken for instituting a criminal case by forwarding complaint before the police, thus section 11 implies for conducting enquiry and institution of criminal case.
Further if the authority is not willing to refer the complaint before the police rather taken decision to initiate action for imposing punishment under service rule, then it will govern by Section 13, as such Section 11 does not attract an opportunity to be provided to cross examine the witnesses, it is for the reason that if complaint would be referred before police, it will lead to criminal trial and thee the person will get an opportunity as per the provision of Code of Criminal Procedure. The same will be applicable regarding opportuynity if decided to initiate action as per service rule, the process as per Discipline and Appeal Rule is to be followed, as such the first ground raised by the petitioner that in view of the provision of section 11 of the Act, 2013 the principle of natural justice has not been followed is not having any substance and accordingly rejected.
9. So far as the second ground is concerned it is to be stated herein that after submission of the internal inquiry report as stipulated under the provision of section 13 of the Act, 2013 wherein under sub-section 13(1) the stipulation made therein to the effect that "to take action for sexual harassment as a misconduct in accordance with the provisions of the service rule applicable to the respondent or where no such service rule has been made in such manner as may be prescribed." This provision has also been read out along with the provision of section 19(i) of the Act, 2013 which stipulates "treat sexual harassment as a misconduct under the service and initiate action for such misconduct". These two provisions is to be read along with the provision of Rule 9 of the Rules, 2013 which speaks "except in cases where service rule exists, where the complaints committee arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the district officer, as the case may be, to take any action including a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service or undergoing a counselling session or carrying out community service."
It is evident from the aforesaid provision that this rule is made for category of employees for whom there is no service rule exists and for such category of employee in case of proving of charge of allegation of sexual harassment, the stipulation made therein to take any action, there is different in between the provision of section 19(i) and Rule 9 while under the provision of Section 19(i) the stipulation made therein to initiate action for such misconduct by treating sexual harassment as a misconduct for such category of employee for whom the service rule is applicable but for such category of employee for whom the service rule is not there the provision of Rule 9 of Rules, 2013 stipulates to take any action, as such for the category of such employee for whom service rules exists, the action is to be initiated under the service rule but for such category of employees for whom the service rule is not there, action is to be taken and there is material difference in between the words „to initiate action‟ and „to take action‟.
„To initiate action‟ as per the service rules denotes to initiate a regular proceeding in case of imposition of punishment either minor or major as provided under the service rule while „to take any action‟ depends upon the authority as has been conferred upon them by virtue of the provision of Rule 9 of Rules, 2013.
Further it is evident from the provision of section 13(1) where the wording is to take action for sexual harassment as a misconduct in accordance with the provision of service rule applicable, meaning thereby the sexual harassment since is not under the fold of misconduct in the service rule and when on the basis of the finding given by the internal complaints committee it is found to be true, then it will be treated as misconduct and thereafter to take action in accordance with the provision of service rule, meaning thereby the imposition of punishment is to be taken in terms of the service rule applicable.
It is also relevant to state herein that if only on the basis of the finding given by the internal complaints committee if an employee working in the establishment found to be involved in the allegation of sexual harassment, if inflicted with the major punishment, then it will be said to be contrary to the service rule and the same will be in the teeth of the Article 311(2) of the Constitution of India since in the Discipline and Appeal Rule, where the process has been formulated to inflict minor or major punishment, has been provided with the provision in terms of the intent of the provision as contained in Article 311(2) of the Constitution of India and if the stand of the opposite party - Bank or the opposite party no.6 will be treated to be true that the second show cause notice with the proposed punishment which is impugned in this writ petition has got no infirmity, then in that situation it will be said that there is violation of the principle as laid down under Article 311(2) of the Constitution of India read with Discipline and Appeal Rule applicable to the petitioner.
It is also to be state here that the wording made under section 13(1) is of a misconduct and not of the proven misconduct, meaning thereby misconduct if found to be arrived at by the internal complaints committee, the same is to be dealt with by initiating a regular proceeding as applicable under the Discipline and Appeal Rule.
10. In the backdrop of this factual aspect, now it is to be seen the legality and propriety of the order impugned which is with the proposed punishment.
It is not in dispute that the proposed punishment is only issued after the finding given by the enquiry report forwarded before the disciplinary authority who, accepting it, issues the proposed punishment by way of second show cause notice, thus the second show cause notice is to be issued after conclusion of enquiry.
The Bank, presuming the report submitted by the internal complaints committee as enquiry report under the Discipline and Appeal Rule, has issued the impugned proposed show cause notice. As has been stated herein above that in the Act, 2013 there are two parts, Section 11 deals with the duty of the internal complaints committee to conduct an enquiry and it can be submitted before the police by way of a complaint if intended to take criminal action or can be submitted before the disciplinary authority for dealing with such employees under the Discipline and Appeal Rule which is under Section 13 of the Act, 2013.
In view thereof the report submitted by the internal complaints committee in view of section 11 cannot be said to be an enquiry report in terms of section 13 to be treated as enquiry report under the provision of Discipline and Appeal Rule and since it is not an enquiry report to be treated U/s.13 as enquiry report, the proposed punishment which is impugned in this writ petition treating the enquiry report submitted under the provision of Section 11 will be said to be an improper decision of the authority since that stage has not yet come because as yet the proceeding has not been initiated as contemplated under the provision of Section 19(i) of the Act, 2013 and in view thereof the notice cannot be held to be sustainable in the eye of law.
11. This court while discussing the facts in detail herein above, has found that the impugned notice issued on 27.12.2016 is in the teeth of the recommendation made by the internal committee whereby and where under it has been recommended for appropriate action against the respondent in accordance with the provision of the service rule and certainly the service rule to inflict major punishment for removal from service contains a procedure under the provision of Rule 68, as such the punishment which has been proposed for removal from service in terms of Rule 67(1) of SBI Officers‟ Service Rule can only be inflicted and will be said to be in accordance with service rule if followed by the procedure laid down U/s.68 of the aforesaid rule.
In view thereof the impugned notice dtd.27.12.2016 is not sustainable in the eye of law, accordingly quashed.
12. In the result the matter is remitted before the disciplinary authority of the petitioner to initiate a proceeding as per the applicable Discipline and Appeal Rule and conclude the same within the period as per the stipulation made under the provision of Act, 2013.
With the above observation and directions the writ petition stands disposed of.
...................
S.N.Prasad, J.
Orissa High Court, Cuttack, Dated the 16th May, 2018 / Manas.
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