Calcutta High Court (Appellete Side)
Abhijit Karjee vs The State Of West Bengal And Others on 23 February, 2021
Bench: Rajesh Bindal, Aniruddha Roy
Item No.13
IN THE HIGH COURT AT CALCUTTA
(Appellate Side)
CONSTITUTIONAL WRIT JURISDICTION
WP.ST 83 of 2018
Date of decision:-23.02.2021
Abhijit Karjee
...Petitioner
-versus-
The State of West Bengal and others
...Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
HON'BLE MR. JUSTICE ANIRUDDHA ROY
Present:- M/s Sayan De and
Kaustuv Shome, Advocates
... for the petitioner
Mr. Tapan Kumar Mukherjee,
Additional Government Pleader
Mr. Somnath Naskar, Advocates
... for the respondents
ORDER
1. Order dated July 18, 2018 passed by the West Bengal Administrative Tribunal (for short, 'the Tribunal') passed in O.A. 311 of 2017 has been challenged by the petitioner.
2. Learned Counsel for the petitioner submitted that a false and fabricated complaint was made against the petitioner alleging sexual harassment to co-employees in the 2 WP.ST 83 of 2018 Police department where he is working. Enquiry was held at the back of the petitioner and recommendations were made for holding regular departmental enquiry. During the process of enquiry by the Internal Complaints Committee (for short, 'the ICC') constituted for enquiring into allegation of sexual harassment of women at workplace, the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (for short, 'the Act') had not been followed. In terms of Section 11(1) of the Act opportunity of hearing was required to be afforded to the employee concerned. However, there is nothing on record to suggest that any opportunity was afforded to the petitioner. Charge-sheet was issued directly which included allegations pertaining to alleged sexual harassment by the petitioner. In the list of documents to be relied upon the enquiry report is one of them. As the enquiry by the Committee itself is vitiated on account of non-observance of the procedure laid down in the Act, the same cannot be made the basis for holding regular departmental enquiry. The charge-sheet to that extent deserves to be quashed. He further submitted that even the allegation regarding demand of bribery is also totally misconceived. The name has been alleged only to harass the petitioner.
3. On the other hand, learned Counsel for the State submitted that the enquiry by the Committee was merely a 3 WP.ST 83 of 2018 preliminary enquiry as the charge-sheet has now been issued against the petitioner under Rule 861 of Police Regulations, Bengal, 1943. No opportunity was required to be afforded to the petitioner during the process of enquiry by the Committee. Now the charge-sheet has been issued. The petitioner has approached the Tribunal without even filing reply to the charge-sheet. During the course of enquiry, he will have full opportunity to defend the charges and even cross-examine the witnesses produced by the Presenting Officer. No case is made out for quashing of the charge-sheet. In support of his argument reliance was placed upon the judgment of the Hon'ble Supreme Court in Secretary, Ministry of Defence and Others vs. Prabhash Chandra Mirdha reported at (2012) 11 SCC 565.
4. Heard learned Counsel for the parties and perused the paper book.
5. From the facts it is evident that complaints filed by the fifteen lady constables of Malda Police Line were referred to the Committee for enquiry into allegations, vide communication dated September 28, 2016 by the Superintendent of Police, Malda. As is evident, enquiry was conducted by the Committee and a report dated October 02, 2016 was submitted to the Superintendent of Police Malda. Besides departmental proceeding, recommendation was also 4 WP.ST 83 of 2018 made for transfer of the petitioner from his present place of posting and in fact the petitioner was transferred thereafter. The recommendation was made for initiating regular departmental enquiry against the petitioner. Subsequent thereto, the charge-sheet was issued on March 23, 2017 which is reproduced as under:-
"As per provision of Rule 861 of PRB, you, Shri Abhijit Karjee, Inspector of Police, 2nd I.R.Bn., Siliguri former Reserve Inspector of Police, Malda, are hereby charged with moral turpitude, undue favouritism and exploitation of manpower by misusing you official power in the following manner that:-
1. As Reserve Inspector of Police, Malda District Police Force, you showed undue favouritism towards LC/872 Roma Dosad of DAP, Malda, as it seems from the official record that she was detailed for Government duty outside the office only on 18th September, 2016 whereas other lady constables of DAP were detailed to outside duties on a regular basis.
2. You made most derogatory remark against LC/865 Nisha Hazra of DAP, Malda who belonged to the Scheduled Caste by indicating her caste. You also humiliated and passed sexually coloured remark against LC/857 Dipika Sarkar of DAP, Malda, which is a serious offence for a public servant.
3. You allegedly pressurized ASI(AB)-584 Amit Kr. Mishra to raise money from the members of the Police Force and to bring wine in lieu of giving them undue advantage.5
WP.ST 83 of 2018 Such acts on your part are absolutely detrimental to public service and caused serious damage to the image of the department.
6. Section 11 of the Act provides for the procedure for enquiring into the complaints by the Committee with reference to sexual harassment of women at workplace. Second provision to Sub-section 1 thereof provides that where both the parties are employees, they shall be afforded of being heard during the course of enquiry and the copy of the findings shall be made available to them, to enable them to make representation against the findings recorded by the Committee.
7. Section 13(3) of the Act provides that the Committee can recommend to the employer to take action for sexual harassment as a misconduct in accordance with the service rules applicable, besides other recommendations.
8. Learned Counsel for the respondent submitted that the enquiry conducted by the Committee was a preliminary enquiry where no opportunity was required to be afforded as the same will be available to the petitioner during the process of regular departmental enquiry hence, no prejudice as such is caused to him. Same is the stand taken in the reply filed by the Government before the Tribunal. However, the contention is totally misconceived if considered in the light of the 6 WP.ST 83 of 2018 provisions of Section 11 of the Act, which clearly mandates opportunity of hearing during the course of enquiry before the Committee. The fact that the aforesaid report by the Committee is the root cause for issuance of charge-sheet is evident from the statement of allegations, the witnesses and documents to be relied upon to prove the charges against the petitioner. Due process as provided under the Act was not followed by the Committee during the process of enquiry of allegations of sexual harassment of women at workplace against the petitioner. Any consequence thereto deserves to be set aside. The charges in the charge-sheet issued against the petitioner with reference to the findings recorded by the Committee, on the basis of which recommendation was made for initiating disciplinary proceeding are, therefore, quashed and the same will be segregated from other charges levelled against the petitioner. However, the same will not debar the competent authority to hold fresh enquiry of the allegations made by the lady police constables against the petitioner regarding sexual harassment at workplace in accordance with law. The enquiry pertaining to other allegations in the charge- sheet is not interfered with. The competent authority shall be entitled to continue with the enquiry pertaining to those charges.
9. As submitted by the learned Counsel for the petitioner at the time of hearing that the other charges 7 WP.ST 83 of 2018 levelled against the petitioner are also false and he prayed for expeditious conclusion of the enquiry, it is directed that the petitioner has filed his reply to the charge-sheet on or before March 22, 2021 and thereafter the process of enquiry may be completed as expeditiously as possible. As far as the process for holding fresh enquiry regarding allegation of sexual harassment of women employees at workplace is concerned the same shall also be concluded as expeditiously as possible, if initiated. The writ petition is disposed of accordingly.
(Rajesh Bindal) Judge (Aniruddha Roy) Judge Kolkata 23.02.2021
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SM