Central Administrative Tribunal - Kolkata
Ramkrishna Yadav vs Eastern Railway on 20 November, 2019
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CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
No. O.A. 350/01054/2019 Reserved on : 13.9.2019
Date of order: k* (I-
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Present HonlDle Ms. Bidisha Banerjee, Judicial Member
Honfole Dn Nandita ChatterjeeV Administrative Member
Ramkrishna Yadav,
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Sr^s^isliag^l^ineer / South,
Eastern Railway, ■>
Sealdah - 700 014.
.. Respondents
For the Applicant Mr.. A. Chakraborty, Counsel
Mr. T.K. Biswas, Counsel
For the Respondents : Mr. S. Bhattachaxya, Counsel
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. 2 o.a. 1054.2019
/
/ ORDER
/ / / Per Dr. Nandita Chatteriee* Administrative Member:
■!' r The applicant has approached the Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:-
HA) Office Order being No. 658-W/15/Sexual Harassment/SC dated 23.7.2019 issued by the respondent No. 2 transferring the applicant from his present plia.ce of posting at Dhakuria to Bongaon under SSE/PW/BNJ is not tenable in the eye of law and as such the same may be quashed.
B) Costs and incidentals.
C) Such further Order/Orders and/or direction/dxrections as your- Lordships deem fit and proper;"
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2. Heard both Ld
pleadings and doctim,efits on record. j-L-p
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3. The matter,-in a narrow compass, ysid^follows; ^
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T^e applicant Oii^5.%19, an
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allegation v/as madfe i' Kanri^GP, :fjremale
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Tradkmanrof the SflLGaag^|^g|^®|^aMtsa^nt. The^Spoijlent o i. ! ^ | authorities, having: ^eh^^&^c^f^e^aallthat the .^omplaint 'B agalnstrfhp-applicant^wasXeriops:lirlj:rilitfee^trari'sferred him tt&iSar^g No. Vi: ' • XX / / !>, ^ ^ ^ I' DTM/1 at Dhaku^ia^underXh!' sdineii'iuhifof ,S:SE./.PW/SPRrwi|n the \ ;-i. ,v ■' (k' purpose of maintaining'discipline in the workfag dhVirQnrrfjgnt andfalso to 1 ** r'--X f/ '+-\ jff F '"'1 maintain safety ^dfsecuf%:-of the Railw^service^"' ^ K 0 The cdmplaiht of ^nt.-
^ jf #■ s' forwarded td rthe Internal •V-- ■ ,l' "r1 Complaints Committee, whop-after conducting a pre|i^ruhary enquiry into the allegations of sexual! harassment-found that the allegation was prima facie substantive and recommended that the applicant or the complainant lady may be suitably posted/transferred so that they may not come into close contact during their official activities.
Upon the recommendations of the Complaints Committee, the respondent No. 2 transferred the applicant from SSE/PW/BNJ at DHK Gang No. DTM-1 to SSE/PW/BNJ vide his orders dated 23.7.2019. The applicant represented on 24.7.2019 for reconsideration, remained away •r <T *; - t / 3 o.a. 1054.2019 from duties on medical grounds, and, thereafter, filed the instant O.A. in which the applicant has challenged the transfer orders dated 23.7.2019.
4. The applicant has advanced the following grounds in support of his claim i
(a) That, after the purportedly baseless allegations of harassment made against him, he was forthwith transferred from Sonarpur Carshed to Dhakuria in the month of May, 2019. Hence, his further transfer from Dhakuria td Bongaon, within another span e * * of two monthsjsft ># e^ . ri=ri*i ji i'
(b) The enqi5^ as started on the basis of doncactedtend baseless allegaEfens and ttC|fep|iic *n transferr^ % faraway % a~ $ Ptefe witho ksuch coifirfiain * ^ars 5 proma it the * Ti-
/ grternal scomhaend transfer of the 1
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| grieved d official to Sffly |ther
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l^kplace on ai^ttrfrliq aggrievei^grT^r. In 1
i the instarfT'Sas®^ Skim ft request JSf the
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ggneveujpwor ^to transfer the dSolwSnt! m Dhafeuria to
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Blggadn. hiS* secona transferJs*rr oormeived.
(d) ThatSth^BpliSiCtoh T9
■effejSe* a d^mile^pFepresentation
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against hil^aseconS^t^^sfer** the^^Sie remains to be
considered by the respondent authorities.
4. The respondents, per contra, would refute the claim of the applicant by stating that,
(a) The respondents are bound by the Honble Apex Court's ratio in Vishaka and others V. State of Rajasthan and others, (AIR 1997 SUPREME COURT 3011) and, that, the first transfer order to Dhakuria h' f 4 o.a. 1054.2019 was issued to prevent the complainant and the applicant from coming into close contact with each other as members of the same Gang. r
(b) The Internal Complaints Committee had submitted a fact finding enquiry report upon hearing the complainant, applicant / respondent as ■A well as other concerned employees on 13.6.2019 and 27.6.2019 respectively. After having enquired into the allegations, the Internal Complaints Committee came to the following findings:-
"Findings:
-'r: ■m In yie^pfthe d^ps^rffldl^llei^^ees^s. istated above, the Internal Complaint tSfellegation leveled by i Smt. against'Sri Rai^iihfaifeda^fel, SPRr about sexual^mentsdf^ffesment has substances which c^ffp^on^^tion of formal enquiry. * 8j?
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E[dsed o® such Complaia^^ Committee
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reconffnerm® the foil
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radSessete^to lir. Divl. Engitieer-II^D^F to^i^.illtimat^ vto vthis t icon- tee.
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Base%on" s^h rec^ameriOTS^fifxh^a^picantj^s sferred to
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a distant place d .prevent any^p tial contaGmhtetaluon between the
complainant and respdtoipnt/applicant in theii^rficial activities.
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(c) The respondents would also rely on the Railway Board's circular, ■r.
No. E(D&A)2015 GS1-1 dated 5.3.2015 on the subject of "Alignment: of ;
Service Rules with the Sexual Harassment of Women at Workplace :
(Prevention, Prohibition and Redressal) Act, 2013", and, would, particularly, refer to para 5.6 of the same, wherein, in compliance to Section 12 of the "Sexual Harassment of Women at Workplace
5 o.a. 1054.2019 (Prevention, Prohibition and Redressal) Act, 2013", the Railway Board had stated, inter alia, as follows "5.6 Recommendations of Internal committee during pendency of inquiry Section 12 of the Act prescribes the action that can be taken by the Internal Committee ^during pendency of the inquiry, which are as follows:- ■ Y
(i) During the pendency of the inquiry, on a written request made by the aggrieved woman, the ■ Internal Committee may recommend the competent authority on the Railway to -
(a) Transfer the aggrieved woman or the charged official to any other workplace, or i::' m •ffi i I s- i\ 5.1. We find. from thw'^cofds- contaihed iE as;
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(Pre%nn-6n, Prohibition 'al^.#edfes#d)mct:®M® states as follows X ■ %. mayjiiake, in ■ uteting, Jt cplnpi&iint 4^p sexual 'harassmen^W^wSkdkicefeto thejfPlntemal. Cb&mittee &fs|] coS^stittited, or the Local ^se i^ps'not so con's^titutecly a p^%d of three monthg^Sm . induent and, in case Iff.serilkpf i&idents, ^thmsa^j^iord^thr^e mSths^ffbm dff'(late of Idst inciderfe \ V & j#"
V "'V w*-' ^it The respoiLdentsf%^onsidering "the ser^it^iess^m the complaint addressed to them, KlS^alsp forwarded the^^mplaint to the Internal >! complaints Committee. The said Committee, after conducting a preliminary enquiry submitted their report recommending, inter alia, transfer of either the complaint or the respondent/applicant to prevent close contact during.official duties.
5.2. It is a fact, that, during the hearings conducted on 13.6.2019 and 27.6.2019, the applicant participated in the hearing. Hence, any hX 6 o.a. 1054.2019 challenges to the process adopted by the Internal Complaints Committee at this stage, is misconceived.
5.3. Section 12(l)(a) of the Act enables the Internal Complaints Committee to1 recommend transfer of the aggrieved yvoman or the respondent to any other workplace during pendency of the enquiry on a written request made by the aggrieved woman. The provisions of Section t 12(l)(a) are extracted as below:-
"12. Action during pjenderi'cy' of inquiry-~S:,(4)x During the pendency of ian inquiry, on a written request^madejby^ the ag§?rg^d woman, the Internal Committee or^h€rLocal1£om®ai^e5^gs) m Icnay recommend, to the i ?
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(a) transfer th#%gfieved woman or the respondent tdlSmc .eAprkplace, or"
# :;Sd In^this '.c^fext, w^^^Ft^at ri Complain^^O||nmittee, ] ■if li having?armsea1, at thejprin® ^afefeclidn^ojLTOi^Khe alle nsmgainst I ■ i the Asplkdent/ : a«l%anPfe!®feffl sv-
broved,1^3lledWor a
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con|uctpf a formai^'e'iTquS^^»1 ip^gnixendrafflhe tranBler oi; the n 1: \\ ii.
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appicai^as provide! oMndgrl mir( \T jfgofjhe Act. j 1;! 'i \
1.AS. nJ-such writtel^#6qupstfof |h! cSpffljamnt- availablSonryord > m <■ i £3i otP' the respondent *««« :e am. ♦ • M leant s abortion i % that th%appli|;a#fowa^tr3sferred for a secoKLii e. lfa hdlkt t ^written %. ^jtjr ^~5 request mlide b^h'e:%grjsve3%4man.
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5.4. We alsb^^fino^^hat rir *• plicant dated 24.7.2019, address§^tp rg ns pending and no #$,L decision of the respondent autfiOnlyJ_consequent to disposal of such representation is on record. The applicant had categorically averred therein that his second transfer was ordered without any written request made by the aggrieved woman, as provided for under Section 12(l)(a) of the Sexual Harassment Act.
6. Hence, to meet the ends of justice, we would direct the said respondent No. 2 to examine the contents of the representation of the U.' r, ■*.
7 o.a. 1054.2019 ;
applicant (Annexure A-4 to the O.A.)," particularly, in the light of 7 V provisions of Section 12(l)(a) of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and to thereafter decide on the scope of re-transfer of the respondent /applicant for the second time on the grounds of avoiding close contact with the complainant.
Till such time, the representation is disposed of, the applicant shall not be relieved from-hirs present place?of?posting at Dhakuria. If the .......-
applicant, however^ alreadyS^ii^^^J^e^lt®.^esfibndent authorities shall not taki a^^^efcive action to compel £hd^^^.iceft^fe to join his transferee! pl'^S^f postin^^^ .r jSIL
7. WithiftKS'se dire'G®n^fh% i Adm^nCsirative Membe&S^ff .
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