Calcutta High Court
Shri Debdulal Maity vs National Insruance Co. Ltd. & Ors on 7 August, 2014
Author: Debangsu Basak
Bench: Debangsu Basak
ORDER SHEET
WP No. 459 of 2014
WITH
GA No. 1856 of 2014
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
SHRI DEBDULAL MAITY
Versus
NATIONAL INSRUANCE CO. LTD. & ORS.
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : 7th August, 2014.
Appearance :
Mr. Debojoyti Basu, Adv.
Mr. Arunava Ganguly, Adv.
...for the petitioner
Mr. Avijit Gangopadhyay, Sr. Adv.
Mr. Supriya Dubey, Adv.
...for the respondent No. 1
Mr. Utpal Bose, Sr. Adv.
Mr. Arindam Ghosh, Adv.
...for the respondent No. 6
The Court : The writ petitioner challenges a notice dated May 14, 2014
issued by the Internal Complaints Committee set up under the Sexual
Harassment of Woman at Workplace (Prevention, Prohibition and Redressal) Act,
2013.
The impugned notice is issued by the Internal Complaints Committee on
the basis of a complaint made by the respondent No. 6 in her letter dated May 5,
2014 addressed to the Presiding Officer of the Internal Complaints Committee.
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None of the appearing respondents wants to file any affidavit.
Initially when the writ petition was moved, an interim order was passed. A
fresh interim order was passed on July 18, 2014 staying the operation of the
impugned notice.
The petitioner submits that, the complaint dated May 5, 2014 issued by
the respondent No. 6 narrates an incident occurring on April 27, 2012. A
disciplinary proceeding was initiated in respect of such complaint which
culminated in the order dated January 27, 2014. The disciplinary authority
found the writ petitioner an abettor in the alleged misconduct happening on April
27, 2012. The disciplinary authority imposed a penalty of reduction of basic pay
by one stage on the petitioner.
The writ petitioner has preferred an appeal against the order dated
January 27, 2014 of the disciplinary authority. The writ petitioner submits that,
he cannot be charged twice in respect of the same offence. He has been
proceeded against in respect of the alleged incident of April 27, 2012.
He further submits that, the complaint dated May 5, 2012 does not
disclose any incident happening on April 27, 2012 to come within the meaning of
sexual harassment as defined in Sexual Harassment of Woman at Workplace
(Prevention, Prohibition and Redressal) Act, 2013.
He submits that, under the provisions of Section 9 of the Act of 2013 a
complainant has three months to make a complaint of sexual harassment to the
Internal Complaint Committee set up under the Act of 2013. The incident alleged
is of April 27, 2012 way beyond the prescribed period of three months from the
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date of the incident. Furthermore, he points out that the complaint letter dated
May 5, 2014 of the respondent No. 6 did not contain any incident after April 27,
2012 to come within the meaning of sexual harassment under the 2013 Act.
The petitioner submits that, the Internal Complaints Committee ought to
have invoked Section 10 of the Act of 2013 prior to issuing a notice under Section
11 of the said Act of 2013.
In the instant case, the Internal Complaints Committee ought not to have
issued the impugned notice.
On behalf of the respondent No. 1 it is submitted that, the earlier
complaint of the respondent No. 6 relating to the incident dated April 27, 2012
was not one for sexual harassment. Therefore, the respondent No. 6 is entitled to
make a complaint. The provisions of the Act of 2013, according to respondent
No. 1, is such that the Internal Complaints Committee has no other option than
to invoke the provisions of Rule 7 of the Rules framed under the Act of 2013 and
issue a notice to the person against whom a complaint is lodged asking for reply.
Section 11 of the Act of 2013 and the Rule 7 framed under the Act of 2013 are
placed in support of such contention.
It is contended that, the Internal Complaints Committee has no power
under the scheme of Act of 2013 to come to a prima facie finding as to whether
the complaint before it is one of sexual harassment or not.
It is contended on behalf of the respondent No. 1 that, the writ petition is
premature. The writ petitioner has to wait for the decision of the Internal
Complaints Committee. It may be that the Internal Complaints Committee on
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consideration of the reply from the writ petitioner may dismiss the complaint
before it. At this stage the writ petitioner is not entitled to invoke the writ
jurisdiction of this Court.
It is also submitted on behalf of the respondent No. 1 that, Rule 7 of the
Rules framed under the Act of 2013 requires the Internal Complaints Committee
to adhere to the principle of natural justice. The writ petitioner herein against
whom the complaint is pending will have adequate opportunity of hearing to clear
his reputation.
It is contended on behalf of the respondent No. 1 that the writ petitioner
has already participated in the proceedings initiated by the Internal Complaints
Committee and has filed a reply before it. Since the writ petitioner has already
participated in such proceeding, he should allow such proceeding to culminate
into finality prior to moving a writ petition.
I have considered and rival contentions of the parties and the materials on
record.
The writ petitioner complains of a letter dated May 14, 2014 issued by the
Internal Complaints Committee of the respondent No. 1. The Internal
Complaints Committee issued the letter dated May 14, 2014 on the basis of a
complaint received by him from the respondent No. 6 contained in a letter dated
May 5, 2014.
The complaint of the respondent No. 6 before the Internal Complaints
Committee relates to an incident occurring on April 27, 2012. The respondent
No. 6 quotes various words used by the writ petitioner in course of the incident of
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April 27, 2012. The respondent No. 6 narrates that on the basis of her
complaint, an enquiry into the incident was undertaken by the appropriate
authority of the respondent No. 1. In such enquiry proceeding, the respondent
No. 6 claims in her letter of May 5, 2014 that the respondent No. 6 was not given
an opportunity to express her feelings and sorrow. She complains that almost
two years have elapsed and the two persons are still behaving in a very
unbecoming manner in the office. She complains that she had to go through a
rough experience of remembering the incident and explaining the same to others
to seek justice and, therefore, made a request to the Internal Complaints
Committee to render her justice.
The Act of 2013 defines sexual harassment in Section 2(n) which is as
follows :
" 2. Definitions. - In this Act, unless the context otherwise requires, -
......................................................
(n) "sexual harassment" includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely -
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of
sexual nature."
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The complaint dated May 5, 2014 by the respondent No. 6 to the Internal Complaints Committee is required to be considered in the light of the definition of sexual harassment as provided under the Act of 2013.
In my reading of the complaint dated May 5, 2014, I do not find any allegation of sexual harassment within the meaning of the Act of 2013 to have occurred on April 27, 2012 or any subsequent date up to May 5, 2014. Whether or not the enquiry proceedings launched on the complain of the respondent No. 6 received acceptable closure to the respondent No. 6 cannot be the basis of launching a complain of sexual harassment under the Act of 2013. Again whether or not the respondent No. 6 was adequately heard in her complaint with regard to the incident dated April 27, 2012 by the enquiry authorities previously also cannot be form basis of a complain under the Act of 2013. The only line in the complaint dated May 5, 2014 which draws attention is the allegation of the respondent No. 6 that, the two persons are still behaving in a very unbecoming manner in the office. However, the respondent No. 6 stopped short of saying that she has been harassed in a manner contemplated under the Act of 2013. All unbecoming behaviour may not come within the purview of the definition of sexual harassment of Act, 2013. The complaint dated May 5, 2014 discloses an element of hireness setting into the respondent no.6 as in her perception she was yet to receive adequate chance not withstanding the penalty awarded by the disciplinary committee to the writ petitioner.
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The contention of the respondent No. 1 is that the Internal Complaints Committee has no power than to issue a notice in terms of Rule 7 on receipt of complain under the Act of 2013, is my view, without substance.
Section 9 of the Act 2013 provides that any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident.
Section 10 of the Act 2013 provides for conciliation. The Internal Committee or the Local Committee, as the case may be, may, before initiating an inquiry under Section 11 and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation.
Section 11 of the Act 2013 provides 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.
Section 11 of the Act of 2013 also speaks of lodging a police complain in given circumstances.
The question raised before me is whether the Internal Complaints Committee is powerless and on receipt of a complaint to look into whether the complaint relates to sexual harassment within the meaning of Act 2013 or not. 8
As noted herein Section 9 speaks of a complaint of sexual harassment as defined in Section 2(n) of the Act 2013. The Internal Committee or the Local Committee envisaged under Section 9 of the Act of 2013 is put in place to look into a complaint of sexual harassment at a workplace. The Internal Committee or the Local Committee constituted under the provisions of the Act 2013, therefore, has to apply its mind on receipt of a complaint as to whether the complaint relates to a sexual harassment as defined under the Act of 2013 that the incident of sexual harassment had occurred at the workplace or not. The mechanism under Sections 9, 10 and 11 of the Act of 2013 is put in place to address a sensitive issue. A woman's dignity and modesty at a workplace has to be protested. A complaint made to the authority constituted under Act of 2013 must receive due consideration of the committee. It must apply its mind to evolve the best possible solution to the complaint received. It must form an opinion as to whether the nature of complaint requires invocation of Section 10 or a process under Section 11. It then will proceed to hold a conciliation under Section 10 of the Act of 2013 if found warranted in the given situation. Whether it closes to undertake conciliation under Section 10 or proceed under Section 11, it must apply its mind to the complain. It cannot abduct its jurisdiction by claiming that it has no other option than to issue notice in term of Section 7.
Section 10 of the Act of 2013 allows the Internal Committee or the Local Committee as the case may be to conciliate between the complainant and the respondent. For the Internal Committee and the Local Committee to conciliate it has to apply its mind as to the nature of complaint. It also has to assess the 9 gravity of the situation. All of these are done prior to an enquiry under Section 11 is launched. Therefore, in my view, the Internal Committee or the Local Committee as the case may be has ample power to consider a complaint received by it to see whether or not such complaint comes within the definition of sexual harassment as defined under the Act of 2013 and whether such incident has taken place at the workplace. Upon such prima facie finding being formed by the Internal Committee or the Local Committee as the case may be, can initiate proceeding for conciliation under Section 10 or initiate proceeding for enquiry under Section 11.
Rule 7 does not require the Enquiry Committee or the Local Committee as the case may be to mechanically issue a notice upon receipt of a complain. The scheme of the Act in my view does not preclude the Internal Committee or the Local Committee on receipt of complaint to apply its mind to arrive at a prima facie finding and thereafter decide on the best course available in the given facts and circumstance of the case before it to say whether to go in a conciliation initially or to launch any enquiry. In fact, Section 11 of the Act of 2013 allows an Internal Committee or Local Committee to forward the complaint to the police.
The writ petitioner contends that the complaint of sexual harassment is of an incident of April 27, 2012 and, therefore, it is beyond the period of three months from the date of the complain being May 5, 2014.
The second proviso under Section 9 allows the Internal Committee or the Local Committee to extend the time limit for filing a complaint. However, Internal Committee or the Local Committee cannot extend such time limit in excess of 10 three months. The Internal Committee or the Local Committee as the case may be has to record reasons in writing for extension.
In the instant case, the incident complained is of April 27, 2012 and the complaint is made on May 5, 2014. The writ petitioner apart from limitation in built in Section 9 of the Act 2013 reads a mala fide conduct on the part of the respondent No. 6. The petitioner contends that, the charge of sexual harassment emanates only after the conclusion of the disciplinary proceeding on January 27, 2014. In the perception of the respondent No. 6 the punishment awarded to the writ petitioner was inadequate. Therefore, the respondent No. 6 is seeking to proceed against the writ petitioner afresh under the provisions of the Act of 2013. There may or may not be substance in such kind of allegation. However, since I am satisfied that the complain dated May 5, 2014 did not disclose any incident to come within the meaning of sexual harassment as defined in the Act of 2013 and within the period of limitation prescribed under Section 9 of the Act of 2013, the Internal Complaints Committee of the respondent No. 1 acted hastily in issuing the impugned notice. The impugned notice in my view is vitiated by non- application of mind.
In such circumstances the impugned notice dated May 14, 2014 is quashed. No order as to costs.
The vacating application is pending. In view of the observations made herein, no order need be passed on such vacating application.
G.A. No. 1856 of 2014, is therefore, dismissed.
11The prayer for stay of operation of this order is made on behalf of the respondent No. 1. The same is considered and rejected.
(DEBANGSU BASAK, J.) akb/