Rajasthan High Court - Jodhpur
Vijay Dhaker vs Nuclear Power Corporation Of India Ltd. ... on 4 November, 2022
Bench: Sandeep Mehta, Kuldeep Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 705/2022
Vijay Dhaker S/o Sh. Balu Ram Dhaker, Aged About 36 Years,
R/o Type-D, 66/4, Anumala Township, Taluka-Vyara, District Tapi
(Gujarat) 394651.
----Appellant
Versus
1. Nuclear Power Corporation Of India Ltd. (Npcil), Through
Its Chairman And Managing Director, Nabhikiya Urja
Bhawan, Anushakti Nagar, Mumbai-400094.
2. The Director, Human Resources (H.r.), Nuclear Power
Corporation Of India Ltd. (Npcil) Nabhikiya Urja Bhawan,
Anushkati Nagar, Mumbai- 400094.
3. The Site Director, Rajasthan Atomic Power Station, Unit 1
To 8, Nuclear Power Corporation Of India Ltd. (Npcil),
Rawatbhata Rajasthan Site P.o.-Anushakti Via-Kota.
4. The Head, Human Resources (Hr), Rajasthan Atomic
Power Station, Unit 1 To 8, Nuclear Power Corporation Of
India Ltd. (Npcil), Rawatbhata Rajasthan Site P.o.-
Anushakti Via-Kota.
5. The Chairperson, Internal Complaints Committee,
Rajasthan Atomic Power Station, Unit 1 To 8, Nuclear
Power Corporation Of India Ltd.(Npcil), Rawatbhata,
Rajasthan Site, P.o.-Anushakti, Via-Kota 323303.
----Respondents
For Appellant(s) : Mr. Ramendra Singh Saluja
Mr. Achraj Singh Saluja
For Respondent(s) : Mr. Sanjay Nahar
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR Judgment 04/11/2022 This instant intra court appeal is directed against order dated 03.11.2020 passed in S.B. Civil Writ Petition No.8259/2020 and order dated 01.07.2022 passed in S.B. Review Petition No.109/2021, whereby S.B. Civil Writ Petition No.8259/2020 and (Downloaded on 11/11/2022 at 08:29:11 PM) (2 of 7) [SAW-705/2022] S.B. Review Petition No.109/2021, filed by the appellant-writ petitioner seeking quashing of Internal Complaints Committee (ICC) Report dated 07.10.2019 and charge sheet dated 10.12.2019 were dismissed.
Brief facts necessary for adjudication of the present intra court appeal are as follows:-
The appellant writ petitioner is an employee of the respondent-organisation. A complaint dated 27.07.2019 was filed by a co-worker against the appellant alleging sexual harassment, pursuant to which, Internal Complaint Committee (hereinafter referred to as "ICC") was constituted by Senior Manager of the respondent-organisation vide order dated 29.07.2019. Proceedings thereafter were conducted by the ICC as per the provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the 'Act of 2013'). In the investigation report dated 07.10.2019 submitted to the disciplinary authority by ICC, the complaint made against appellant by co-worker was found to be correct. Consequently, a memorandum along with statement of article of charges framed against the appellant along with statement of imputations of misconduct or misbehaviour in support of article of charges dated 10.12.2019 was served upon the appellant-writ petitioner as per the provisions of Nuclear Power Corporation of India Ltd. (Discipline and Appeal) Rules, 1996 (hereinafter referred to as the "Rules of 1996"). The appellant by way of reply dated 13.01.2020 denied all the charges levelled against him and requested disciplinary authority to drop the disciplinary proceedings. However, the disciplinary authority (Downloaded on 11/11/2022 at 08:29:11 PM) (3 of 7) [SAW-705/2022] vide order dated 04.02.2020 appointed ICC (for prevention of sexual harassment of women at workplace) NPCIL, RR Site, as the inquiring authority to inquire into the charges framed against the appellant-writ petitioner.
Learned counsel for the appellant vehemently and fervently argued that Section 11 of the Act of 2013 mandates that ICC after completion of its investigation/inquiry shall extend an opportunity of being heard to both the parties and shall also provide copy of the findings recorded by it to both the parties so as to enable them to make representation against said findings before the Committee. Learned counsel further submitted that only after examining the representation, if any, made by the concerned employees, the ICC shall submit its findings to the employer within ten days from the date of completion of the inquiry as per Section 13 of the Act of 2013 and such report will also be made available to the concerned parties. Learned counsel urged that the requirements enshrined under Section 11 and 13 of the Act of 2013 have not been complied with in the present case since the copy of the findings was not supplied to the appellant-writ petitioner and charge sheet dated 10.12.2019 came to be issued. It was thus prayed that disciplinary proceedings initiated against the appellant pursuant to the charge sheet dated 10.12.2019 in conformity with the Rules of 1996 be declared null and void.
Per contra, learned counsel for the respondents submitted that before preparing final inquiry report, the appellant was provided an effective hearing following principles of natural justice. Learned counsel further submitted that the ICC report is nothing more than a preliminary investigation/inquiry, therefore, (Downloaded on 11/11/2022 at 08:29:11 PM) (4 of 7) [SAW-705/2022] once a charge sheet based on the findings of ICC has been served upon the appellant, the appellant is required to participate in the disciplinary proceedings and submit defense in accordance with the Rules of 1996. Learned counsel however, could not refute the fact that the findings recorded by ICC in its investigation/inquiry pursuant to the complaint made against the appellant by co- worker, followed by inquiry report prior to initiation of disciplinary proceedings vide charge sheet dated 10.12.2019 were not supplied to the appellant.
Heard learned counsel for the parties and perused the material available on record.
Section 11 and Section 13 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is reproduced herein-below for ready reference:-
"11. Inquiry into complaint.-- (1) 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 a period of seven days for registering the case under section 509 of the Indian Penal Code (45 of 1860), 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 10 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:
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(5 of 7) [SAW-705/2022] Provided further that where both the parties are 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 (45 of 1860), 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 15.
(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 the Code of Civil Procedure, 1908 (5 of 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 of ten 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--
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(6 of 7) [SAW-705/2022]
(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:
Provide 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.
Emphasis supplied"
Bare perusal of the aforequoted provisions of the Act of 2013 makes it evident that the ICC after making a preliminary inquiry into the complaint with regard to allegations of sexual harassment shall conduct an inquiry adhering to the principles of natural justice and shall supply copy of the findings recorded by it to both the parties so as to enable them to make representation against the findings before the committee. A conjoint reading of Section 11 and 13 of the Act of 2013 shows that the ICC shall submit final report to the employer only after examining the representations, if any, made against findings recorded by it. Section 11 of the Act of 2013 ensures that an employee does not suffer undue hardship on account of false/frivolous complaints made against him and at the (Downloaded on 11/11/2022 at 08:29:11 PM) (7 of 7) [SAW-705/2022] same time, it also ensures that unwelcoming acts/behavior do not go unpunished because of faulty analysis or gathering of information during investigation/inquiry conducted by the ICC.
Admittedly, the appellant was neither supplied with the copy of findings recorded during investigation/inquiry by the Internal Complaints Committee nor was he supplied with the inquiry report prior to issuance of the charge sheet dated 10.12.2019 qua the charges of sexual harassment alleged by a co-worker of the respondent-organisation. The initiation of disciplinary proceedings therefore, suffers from apparent violation of Sections 11 and 13 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
In view of aforesaid, the impugned order dated 03.11.2020 passed in S.B. Civil Writ Petition No.8259/2020 and order dated 01.07.2022 passed in S.B. Review Petition No.109/2021, are hereby reversed.
In the result, the intra court appeal stands partly allowed. The impugned charge sheet dated 10.12.2019 is quashed and set aside. The matter is remanded back to the disciplinary authority to initiate proceedings under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 from the stage of calling for the representation against the findings arrived at by the Internal Complaints Committee.
No order as to costs.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J
43. Prashant /-
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