Central Administrative Tribunal - Mumbai
Poonam Shahani vs Central Bureau Of Investigation on 15 April, 2024
i OA No. 1001/2022 CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAI BENCH, MUMBAI ORIGINAL APPLICATION No. 1001/2022 Dated this Montag _, the \sty day of Hox), 2024 CORAM ;: JUSTICE SHRI M.G.SEWLIKAR, MEMBER (J) SHRI RAJINDER KASHYAP, MEMBER (A) Poonam Shahani Age 51 years, working as Stenographer, Grade-I, Central Bureau of Investigation, Special Crime Branch, Mumbai, residing at Building No. 41, Flat No. 1445, 'A' Wing, Second Floor, C.G.S. Colony, Sector 7, Antop Hill, Mumbai 400037. Email : [email protected] Phone No. 9833364979. _-Applicant (By Advocate Mr. V A Nagrani ) Versus 1. Union of India, The Secretary, Ministry of Personnel, Public Grievances and Pensions, Personnel & Training, AVD-II, DOPT, North Block, Central Secretariat, New Delhi 110 001. 2. The Director, Central Bureau of Investigation (CBI), Plot No. 5-B, 10% Floor, CGO Complex, Lodhi Road, New Delhi 110 003. 3. Administrative officer (A) Central Bureau of Investigation 5-B, 7" floor, CGO Complex Lodhi Road, New Delhi 110003. 4, Shri S.R Singh, Supdt. of Police & Head of Branch, Central Bureau of Investigation, Special Crime Branch, A Wing, 8" floor, C.G.O. Complex, Belapur CBD Navi Mumbai. 400614. -- 5. The Head of Branch, Central Bureau of Investigation Bank Security & Fraud (BS&F) Zone, 3 & 4" floor, Plot No. C-35A, 'G' Block, Bandra Kurla Complex, Near MTNL Exchange, Bandra (East), Mumbai 400098. 6. The Committee under the Prevention of Sexual Harassment of Woman at Workplace (Prevention, Prohibition & Redressal) Act, 2013 Central Bureau of Investigation, Special Crime Branch, A Wing, 8" floor, C.G.O. Complex, Belapur CBD, Navi Mumbai. 400614. 7. Shri Mohd. Anwarul, Inspector of Police, CBI (to be served through 2 OANo. 1001/2022 official respondents). -Respondents (By Advocate Mr. R R Shetty ) Order Reserved on: 30" January, 2024 Order Pronounced on: IS th Biri. 2024 ORDER Per : Justice M.G.Sewlikar, Member (J)
The applicant has preferred this Application against the order dated 21" April, 2022 by which his/her complaint of sexual harassment has been illegally closed by the disciplinary authority.
2. Facts in brief are that the applicant is a single mother to a girl child and has been residing in the official accommodation provided to her by the Central Bureau of Investigation (CBI) in Staff Residential Quarters at Antop Hill, Mumbai, along with her daughter 'Respondent no. 7 who is Police Inspector (PI) in CBI was residing in the same building at the time when the incident occurred. The applicant contends that on 21% November, 2021 at about 8:30 pm, respondent no. 7 performed obscene sexual act in the CBI quarters in the full view and presence of the applicant and her | teenage daughter. The applicant had filed a written complaint 3 OA No. 1001/2022 dated 30° November, 2021 before the Antop Hili Police Station. This complaint was lodged in Antop Hill Police Station. The Antoy' Hill Police Station did not take any action on the complaint of the applicant. Therefore, the applicant filed a complaint with the CBI against respondent no. 7 through respondent no. 4 under the Prevention of Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 (POSH Act). The applicant has averred that the internal committee or the local committee, as the case may be, ought to have made an inquiry into the complaint in accordance with the provisions of the POSH Act. The respondent no. 4 did not take any action on the complaint of the applicant for a period of three months. The respondents vide order dated 21° April, 2022 illegally closed the said complaint on the ground that the official residence cannot be treated as workplace within the meaning of section 2(0) of the POSH Act. She contends that she has filed complaint against Shri Amrish Pandey, the then PP CBI ACB Mumbai. Thus, the complaint was closed on the ground that the official residence 4 OA No, 1001/2022 of the applicant cannot be treated as workplace within the meaning of the POSH Act. It is contended by the applicant that the order passed by the respondents is ex-facie illegal, arbitrary, and ab-initio void. She contends that vide Section 2(0)(vi) of the POSH Act, the workplace is defined as a dwelling place or a house. The applicant has therefore, filed this application against the order passed by the respondents dated 21° April, 2022 (impugned order). |
3. Respondents filed their reply. It is their contention that the applicant is allotted official residential accommodation in Antop Hill Residential Quarters, Mumbai. They contend that the complaint filed by the applicant against respondent no. 7 in Antop Hill Police Station is beyond the jurisdiction of CBI. It has been learnt that the allegations could not be substantiated and as such the complaint has been filed / closed at Police Station level. The respondents contend that they received the complaint of the applicant dated 24" January, 2022 through proper channel to the Head of Branch CBI, Bank, Security and Fraud Zone, Mumbai against respondent =) OA No. 1001/2022 no. 7. The complaint made by the applicant has been closed by the department as the alleged obscene acts committed by respondent no. 7 took place in the compoud of Government Residential Quarters, Antop Hill, Mumbai, which is the official residence of the applicant and cannot be treated as workplace within the meaning of Section 2(o)(vi) of the POSH Act. They :.contend that the definition of expression 'aggrieved woman' has been given in Section 2(a) of the POSH Act. From this definition, it is clear that the aggrieved woman in a dwelling house means a woman of any age who is employed in a dwelling place or house. This definition primarily covers domestic helps/ servants, who are employed in a dwelling place or house. The official residence of the applicant is at a distance of 25 kilometers from the workplace of the applicant. Therefore, the respondent were within their right to close the complaint of the applicant on the ground that the official resideace does not come within the ambit of the workplace as defined in the Act. Applicant has made twelve complaints against Shri Amrish Pandey, the then PP, CBI, 6 OA No. 1001/2022 ACB, Mumbai and others. Shri Amrish Pandey has also made complaints against the applicant. Since the alleged obscene sexual act took place at the official residence of the applicant, the complaint was rightly closed by the respondents. They, therefore, prayed for dismissal of the application.
4. Applicant has not filed the rejoinder.
5. We have heard learned counsel for the applicant and learned counsel for the respondents at great length.
6. Learned counsel for the applicant submitted that this house has been provided by the government. The respondent no. 7 has also been provided a house by the government in the Government Quarters, Antop Hill, Mumbai. The definition of workplace includes a dwelling house. He submitted that the | respondents did nét decide the complaint of the applicant for almost three months. When the three months period was about to expire, the respondents decided the complaint of the applicant without referring 'it to the internal complaints committee constituted by the respondents. He further contended that in terms of Section 9 of the POSH Act, 7 OA No. 1001/2022 complaint has to be made to internal complaints committee constituted by the employer. Therefore, it was not proper on the part of the respondents to decide the complaint of the applicant without referring it to the internal complaints committee constituted under Section 9. The scheme of the Act contemplates that "he complaint received by the employer has to be forwarded by the employer to the internal complaints committee. The respondents have not followed this procedure. The respondents simply decided the complaint of the applicant without referring it to the internal complaints committee. He placed reliance on the case of Silajit Guha Versus Sikkim University and Others in the matter of WA. No. 01/2021 (High Court of Sikkim). He contended that in this case of
-Silajit Guha (supra), the act of sexual harassment had taken place at a wedding reception in a hotel. He contended that the Division Bench ii Silajit Guha case held that in the facts of the case the ambit and scope of workplace as specified in the Section 2(0)(vi) of the POSH Act can be decided after appreciation of the evidence brought before Internal 8 OA No. 1001/2022 Complaint Committee (ICC). He contended that in the case at hand also it is for the Internal Committee to take a decision as to whether the dwelling house i.e. the official residence of the applicant is a workplace or not. It is not for the disciplinary authority to take this decision. He has placed reliance on the following cases:-
(i) Jaya Kodate Versus Rashtrasant Tukdoji Maharaj Nagpur Universiiy and Others, 2014 SCC Online Bombay
814. |
(ii) Initiatives For Inclusion Foundation and Another Versus Union of India and Others, 2023 SCC Online SC 1373 (Supreme Coury).
7. Learned counsel for the respondents submitted that for understanding the definition of workplace, the definition of aggrieved woman has also to be considered. He submitted that aggrieved woman means in relation to dwelling place or house, a woman of any age who is employed in such a dwelling place or house. He submitted that the dwelling place as referred to in Section 2(0)(vi) means a dwelling place or a 9 OA No. 1001/2022 house in which a woman of any age who is employed in such a dwelling place or a house. He contended that the meaning of dwelling house is the house in which a woman is employed. It does not indicate that the dwelling house in Section 2(0)(vi) refers to the house in which the victim of sexual harassment is residing. The definition of work place is not exhaustive but is inclusive. However, it does not mean that it should be extended to the house in which the victim of sexual harassment is residing. If this interpretation is accepted, it will "be against the very object of the POSH Act. He contended that the object of the POSH Acct is to cover the unorganized sector. It primarily concerns with a domestic help at the dwelling house of the government employee or for that matter any employer whether private or government. He contended that the employer cannot be expected to play the role of a postman. When he received the complaint, it is for the employer to decide whether complaint can be referred to the Internal Complaint Committee constituted by him under the POSH Act. He has the discretion to take a decision as to whether the 10 OANo, 1001/2022 complaint makes out a case of sexual harassment. The applicant did not, make complaint to the Internal Complaint Committee but she made the complaint to the Head of the Branch. Therefore, the Head of the Branch took the decision that the case of sexual harassment is not made out as the act was not committed at the workplace as dwelling house does not come within the sweep of the definition 'aggrieved woman'. He placed reliance on the case of Saurabh Kumar Mallick Versus The Comptroller & Auditor General of India and Another in WP(C) No. 8649/2007 (Dethi High Court).
8. We have thoughtfully considered the submissions made by the learned couasels for the respective parties.
9. From the pleadings and the submissions made the points which we are called upon to decide are:-
(i) ° Whether the 'disciplinary authority can decide the complaint under POSH Act without referring the same to the Internal Complaint Committee.
(ii) Whether official residence of the complainant' can 'be treated as workplace within the ambit of POSH Act.11 OA No. 1001/2022
10. For dealing with the issue of point no. (1), a resume of the provisions of POSH Act will have to be taken. Section 2(a) of the POSH Act defines "aggrieved woman" as (i) in relation to a workplace, a woman, of any age who has made allegations of the act of sexual harassment and (ii) in relation to dwelling place or house, a woman of any age who is employed in such a dwelling place or house. Section 2(n) defines "sexual harassment" as the unwelcome act or behavior whether directly 'or by implication namely physical contact and advances or a demand or request for sexual favours or -"
making sexually coloured remarks or showing pornography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature. "Workplace" is defined by Section 2(0){v1) which includes-
(1) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the -
appropriate Government or the local authority or a 12 OA No. 1001/2022 Government company or a corporation or a co-operative society;
(ii) any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, _ sale, distribution or service;
_ (iii) hospitals or nursing homes;
(iv) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;
(v) any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey;
(vi) a dwelling place or a house;
'dil. Chapter If deals with Constitution of Intemal Complaints Com:nittee. Section 4 of the Chapter II of the 13 OA No. 1001/2022 POSH Act states that every employer of a workplace shall constitute a committee to be known as the "Internal Complaints Committee". Sub-section 2 speaks of the members to be nominated by the employer of the Internal Complaints Committee. Section 5 speaks about issuance of notification by the appropriate government for the appointment of District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as a District Officer for every District to exercise powers or discharge functions under the POSH Act. Section 6 speaks about constitution of Local Committee. It states that every District Officer shall constitute in the concerned district, a committee to be known as the Local Committee to receive complaints of sexual harassment from establishments where the Internal Committee has not been constituted due to having less than ten workers or if the complaint is agaiiist the employer himself. Section 7 speaks of the composition, tenure and other terms and conditions of Local Committee. |
12. Chapter 4 of the POSH Act deals with the complaint.
14 OA No. 1001/2022Section 9(1) speaks of the complaint of sexual harassment. It states 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 within a period of three months from the date of incident. Section 10 deals with conciliation. It states that Internal Committee or the Local Committee 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. Chapter V deals with inquiry into ~ complaint. Section 11 deals with inquiry into complaint. Section ii contemplates that where the respondents is an employee, the Irternal Committee or the Local Committee shall proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondents and where no such rules exist, in such manner as may be prescribed. In case of domestice workers, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for 15 OA No. 1001/2022 registering the case under section 509 of the Indian Penal Code. Section 12 speaks about action during pendency of inquiry. It states that during the pendency of an inquiry on a written request made by the aggrieved woman, the Internal Committee may recommend to the employer to transfer the aggrieved woman or the respondent to any other workplace or grant leave to the aggrieved woman up to a period of three months or grant such other relief to the agerieved woman as may be prescribed.
13. Section 13 speaks about Inquiry report by Internal Committee or the Local Committee as the case may be. On the completion of the inquiry under POSH Act, the Internal Committee or the Local committee shall provide a report of its findings to the employer or to the District-Officer within a period of ten days from the date of completion of such inquiry. Sub-section 3 of Section 13 states that where the Internal Committee or the Local Committee arrives at the conclusion that the allegation against the respondents has ben proved, it shall recommend to the employer to take action against the 16 OA No. 1001/2022 respondents in accordance with Section 13(3)(i) & (ii). Sub- section 4 of Section 13 speaks about the action to be taken by the employer upon the recommendation within sixty days of its receipt by him. Section 14 speaks about punishment for false or malicious complaint and false evidence. Section 15 speaks about determination of compensation. Section 16 speaks about prohibition of publication or making known contents of complaint and inguiry proceedings. Section 17 speaks about penalty for publication or making known contents of complaint and inquiry proceedings. Section 18 | speaks about appeal to be preferred by the person aggrieved from the recommendations made under sub-section (2) of section 13 or under clause (i) or clause (ii) of section 13 etc. This appeal has to be preferred within.a period of ninety days of the recommendations in terms of section 18(2) of the POSH Act. Section 19 speaks about duties of employer and Section 20 speaks about duties and power of District Officer.
14. From these provisions, it is clear that complaint has to be made to the Internal Committee in terms of Section 9 of the 17 OA No. 1001/2022 POSH Act. The Internal Committee can take action of conciliation as per Section 10 and can make inquiry into the complaint as per Section 1land recommends action during the pendency of the inquiry for transfer of aggrieved woman or respondent and submits the inquiry report in terms of section 13 of the POSH Act. In the case of Union of India and Others Versus Dilip Paul in Civil Appeal No. 6190 of 2023 (Supreme Court), it has been held in para 46 and 47 thus:-
" 46, At this juncture, it would be apposite to refer to the 2006 Standing Order more particularly Clause 10(i), which prescribes the first step for making a complaint of sexual harassment and provides how the complaint and redressal mechanism for sexual harassment is set-into motion. The said provision is being reproduced below: -
"10. COMPLAINT MECHANISM
i) Any person aggrieved shall prefer a complaint before the Complaints Committee at the earliest point of time."
47. A bare perusal of the aforementioned provision makes it abundantly clear that the complaint mechanism begins with a complaint being made to the "complaints committee" and as such any inquiry into the. complaint of sexual harassment under Rule 14 of the 1965 CCS Rules. read with the 2006 Standing Order begins the moment any complaint is made to a complaints committee specified in Clause 9, be it a Frontier Complaints Committee or a Central Complaints Committee."
15. From these provisions and the Supreme Court decision in the case of Dilip Paul (supra), it is clear that complaint has to be made to the Internal Committee. These provisions 18 OANo. 1001/2022 clearly indicate that complaint has to be made to Internal Committee or the Local Committee where the strength of the employee is less than 10 or where the complaint is against the employer himself. Section 9 of the POSH Act mandates the employer to constitute Internal Committee where the strength of the employees is ten or more than ten. In terms of Section 4 Internal Complaints Committee has to be constituted by the employer. It consists of a Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees, not less than two members from amongst employees who are committed to the cause of women or who have had experience in social work or have legal knowledge and one member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. These provisions unmistakably show that the employer has to constitute Internal Committee or the Local Committee as the case may be. The provisions indicate that complaint has to be made to the Internal Committee.
19 OA No. 1001/2022Therefore, it is expected that once a complaint is received, it has to be forwarded to the Internal Committee if it is not addressed to the Internal Committee. By deeming fiction the jurisdiction of the employer to decide whether prima facie case exists or not is taken away. That job is entrusted to the Internal Committee. This is evident from the provisions of Section 11. Section 11 authorizes the Internal Committee to inquire into the complaint and in case of a domestic worker, the Local Committee if prima facie case exists shall forward the complaint to the Police for appropriate action under Section 509 of Indian Penal Code.
16. The question that arises is what is the course open for the employer if he receives the complaint under POSH Act. Whether it is permissible for him to take a decision-on the complaint and refuse to forward it to the Internal Committee for inquiry. The POSH Act is silent on this aspect of the matter. Section 9 only says that aggrieved woman shall make complaint to Internal Complaint Committee or Local Committee. It does not deal with the right of the employer to 20 OA No. 1001/2022 refer or refuse to refer the complaint to Internal Complaint Committee.
17. In CCS CCA Rules, Chapter VI Rule 14 deais with procedure for dealing with major penalty. Rule 14(2) reads thus:-
"(2) Whenever the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof:
"Provided that where there is a complaint of sexual harassment within the meaning of Rule 3-C of the Central Civil Services (Conduct) Rules, 1964, the Complaints Committee established in each Ministry or Department or Office for inquiring into such complaints, shall be deemed to be the Inquiring Authority appointed by the Disciplinary Authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down tn these rules."
.18. It was argued that the words "the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehavior against the government servant" indicate that the disciplinary authority has the power to decide
19. 21 | OA No. 1001/2022 whether complaint has to be forwarded to the Internal Committee. In short, the argument is that the employer has the authority to decide whether there exists prima facie case for referring the complaint io Internal Committee. It was argued that employer in such cases is ' not a postman. He has to decide whether the complaint has to be referred to the Internal Committee or not. We do not approve of this submission. Section 13(4) clearly states that the employer or the District Officer shall act upon the recommendation of the Internat Committee or the Local Committee within sixty days of its receipt by him. Thereafter, Rule 14(2) comes into play. At that time he has to take a call as to whether chargesheet is to be served on the employee or not.
This very question had fallen for consideration before Kerala High Court in the matter of Union of India vs V.S. Jaitha in WP(C) No, 9695/2008. decided on 01° day of August, 2016. The question formulated in the decision of V.S. Jaitha case is "Whether a compliant preferred by the victim with the 22 OA No. 1001/2022 allegation of 'sexual harassment' in the workplace, has to be scrutinised by the 'Complaints Committee' itself, to form an opinion as to involvement of any such instance of sexual harassment before proceeding with further steps or whether it could be examined by the 'Disciplinary Authority' at the first instance to see whether it involves any such misconduct to be proceeded with, by the enquiring authority is the basic point to be considered in this writ petition."
20. After discussing various provisions of the POSH Act and Rule 14(2) of the CCS(CCA) Rules, the Kerala High Court held thus:-
"15. It is settled law, in iabour/service jurisprudence, that no authority can impose the punishment of dismissal unless such authority is having power to appoint. However, the Disciplinary Authority need not be the Appointing Authority in all circumstances. Going by Rule 14(2) of the CCS (CCA) Rules, when a misconduct is noted and if the Disciplinary Authority finds that it is a matter which requires to be enquired into, he can conduct the enquiry either by himself or through another enquiring authority. By virtue of the 'proviso' to Rule 14(2) of the CCS (CCA) Rules introduced in the year 2004, if it pertains to 'sexual harassment', it is to be enquired by the Committee constituted specifically in this regard.
16. According to the learned Sr. Counsel for the petitioners, this is only the 'second stage' of the proceedings, i.e., if only the Disciplinary Authority finds as per Rule 14(2) of the CCS(CCA) Rules that it is a matter which requires to be enquired into. Here, there is a 23 OA No. 1001/2022 field of discretion to form an opinion, as to whether there is any substance to be enquired into and it is in exercise of this discretion that Annexure-Al3 came to be issued, dropping the proceedings, which is stated as quite in order, We find it difficult to agree with the said proposition for the reasons noted below.
17. The principles evolved by the Apex Court and the directions given in Vishaka's case were reiterated and further directions were issued in the subsequent rulings rendered by the Apex Court including the verdicts in Medha Kotwal Lele vs. Union of India [(2013)1 SCC _ 297|Seema Lepcha vs. State of Sikkim [(2013)11 SCC 641] and Additional District and Sessions Judge 'X' vs. Registrar General, High Court of M.P. [(2015)4 SCC 91]. It can no more be a matter of dispute that, if at all any imputation of misconduct is made involving 'sexual harassment' as defined in Vishaka's case and incorporated in Rule 3C of the CCS (Conduct) Rules, it can be enquired into only by the 'Complaints Committee' as stipulated in the 'proviso' to Rule 14(2) of CCS(CCA) Rules, in so far as a Government servant is concerned. As per Rule 142) of the said Rules, normally, if the Disciplinary Authority is of the opinion that there are grounds for enquiring into the truth of imputation/misbehaviour, it may either enquire it himself or appoint an inquiring authority under the said rule or appoint an authority under the provisions of Public Servants (Inquiries) Act, 1850in this regard. The formation of an 'opinion' as to the existence of a ground to enquire under such circumstance is with reference to the generality of the term 'misconduct/misbehaviour'. By virtue of the 'proviso' introduced with effect from 10.07.2004 to Rule 14(2) of the CCS (CCA)Rules, an exception is drawn with regard to a misconduct/misbvehaviour/complaint involving 'sexual harassment', coming within the purview of Rule 3C of the CCS (Conduct)Rules. If such an instance is involved, the 'proviso' to Rule 14(2) of the CCS (CCA) Rules insists that, it shall be enquired into only by the 'Complaints Committee' constituted in this regard. It is to be based on such report, that further action to be taken by the Disciplinary Authority and the punishment to be imposed, if the misconduct involving 'sexual harassment' is proved. In other words, the right to enquire into a 24 OA No. 1001/2022 misconduct/misbehaviour involving 'sexual harassment! has been taken away from the powers conferred upon the Disciplinary Authority. The formation of 'opinion' as to whether any ground existed, to enquire into the truth has relevance only in respect of matters, which the Disciplinary Authority himself couid enquire into. When the power to enquire into is taken away from the Disciplinary Authority, conferring the same upon the 'Complaints Committee (in respect of sexual harassment) as per the 'proviso' introduced to Rule 14(2) of the CCS (CCA) Rules with effect from 10.07.2004 pursuant to Vishaka's case and amendment of the CCS (Conduct) Rules, introducing Rule 3C (in 1998), the power to form an 'opinion' is also to be deemed as lost or stands transferred to the 'Complaints Committee'. To put it more clear, when an authority does not have the power to enquire into the correctness or otherwise of the complaint involving 'sexual harassment', such authority cannot form an 'opinion' and is virtually prevented from considering the contents of the Complaint as to whether any. ground to enquire into such complaint does exist or not . If the version of the petitioners (that if only the Disciplinary Authority prima facie finds that the complaint involves an instance of 'sexual harassment', will it become essential to have it placed before the Complaints Committee) is accepted, it may be possible to subvert the purpose of the Rule/enactment. If under a given circumstance, the post of Disciplinary Authority comes to be held by an unscrupulous person or if such Disciplinary Authority happens to be a person interested in the cause either by virtue of acquaintance with the delinquent employee or by virtue of hostility to the victim, it may be possible for the Disciplinary Authority to say that the Complaint does not contain any act of 'sexual harassment', thus consciously preventing further course of action at the hands of the 'Complaints Committee'. This is not the intention of the Apex Court/Law makers. An 'opinion' can be formed only by the competent authority, who is having the power to enquire, i.e., nobody else than the 'Complaints Committee'. This being the position, the view taken by the Tribunal that the matter ought to have been placed for consideration before the Complaints Committee does not suffer from any error and is liable to be sustained."
25 OA No, 1001/2022
21. Thereafter, the Kerala High Court concluded thus:-
"26. The sum and substance of the above discussion is to the effect that:
(i) whenever a complaint is preferred with imputation of misconduct/misbehaviour involving sexual harassment coming within the purview of Rule 3C of the CCS(Conduct) Rules, it has necessarily to be placed before the committee as envisaged under the proviso to Rule 14(2) of the CCS (CCA) Rules to be enquired into.
(ii) Under such circumstances it is not for the disciplinary authority to formulate any opinion as to whether any ground exists to enquire into the complaint or not and it shall be for the Complaints Committee to do such exercise. .
(iii) After commencement of Act 14 of 2013 wef.
09.12.2013 if any complaint is received involving a misconduct of 'sexual harassment' as defined under Section 2(n) of the said Act, it shall be caused to be dealt _ with in terms of the provisos of the Act/Rules. .
(iv) It is open for this Court/Tribunal to intercept the proceedings on exceptional circumstances,, if the complaint does not disclose any instance of misconduct of 'sexual harassment' coming W.P(C)No.9695 OF 2008 within the purview of Rule 3C of the CCS (Conduct) Rules/Sec.2(n) of Act 14 of 203.
(v) Ext.P1 order passed by the Tribunal is intercepted only in respect of the directions as contained in paragraphs '19' and '20'.
(vi) The direction in paragraph 21 of Ext.Plorder passed by the Tribunal setting aside Annexures-Al to A9 show- cause notices will stand intact and no further proceedings need to be pursued against respondents I to 9 in respect of the cause of action mentioned in Annexures Al to A9."
22. From the above discussion, it is amply clear that the -
disciplinary authority has no authority to decide whether there 26 OA No. 1001/2022 exists prima facie case in the complaint. He has to forward it to the Complaints Committee.
23. Inthe case at hand, the employer / disciplinary authority dismissed the complaint of the applicant holding that the official residence of the applicant cannot be treated as workplace. We have extracted above the definition of workplace and the definition of aggrieved woman. It was argued by the learned counsel for the respondents that a dwelling place or a house cannot be determined as per caefinition in Section 2(o)(vi) without _ referring to the definition of the aggrieved woman. Section 2(a)(ii) defines aggrieved woman means in relation to dwelling place or a house, a woman of any age who is employed in such a dwelling place or house. Learned counsel for the respondents placed reliance on the case of Saurabh Kumar Mallick Versus The Comptroller and Auditor General of India and Another in WP(C) No. 8649/2007. In para 21,22 & 23, Delhi High Court held thus:-
"21. It is imperative to take into consideration the recent trend which has Obviously emerged with the advent of 27 OA No. 1001/2022 computer and internet technology and emerged wint of information technology. Alle in some otro Business conference with other person while sitting in some other country by means of video-conferencing. It is that office is run by certain CEOs from their residence. members of public would not have access to that place, though personal staff of such an officer would be present there. In a case like, this if such an officer indulges into an act of sexual harassment with an employee, say, his private secretary, it would not be open for him to say that he had not committed the act at 'workplace', but at his 'residence' and get away with the same. It is also a matter of common knowledge that in educational institutions, hostel accommodation is provided to students and teachers are also provided the residential flats. These may be within the vicinity of the P college complex. An officer or teacher may work from the accommodation allotted to him. He would not be allowed to say that it is not a workplace. These are some of the illustrations which are given to bring home the point that we cannot accept the narrow definition of the expression 'workplace' as sought to be projected by the learned counsel for the petitioner.
22. Once it is accepted that for achieving justice adapting to such changes is imperative, the question that arises is as to | how these changes may be effected. No doubt, one method is to incorporate such changes through legislation. However, in the absence of legislation, as in the present case where the term 'workplace' is not defined, that would not mean that such changes are not to be judicially recognized and taken note of while defining such an expression. In the process one of the conceptual tinkering and use of equity are the accepted judicial methods. Sir Henry Maine propounded the classic thesis that what he called 'progressive societies' develop beyond the point at which 'static societies' stop through the use of fiction, equity and finally legislation judgment in the case of Vishaka (supra) itself is a recognition of change through judicial method.
23. In so far as the office complex is concerned, it would definitely come within the sweep of workplace. However, whether any other place is to fall within the said definition or not would depend upon the facts and circumstances of each case. The Tribunal is, therefore, right in even observing that each incident of sexual harassment at the workplace has to be considered in the facts and circumstances of that particular 28 OA No. 1001/2022 case. At the same time, definition of workplace cannot be generalized to include all residences within the meaning and ambit of workplace, at it may lead to absurdity. The Tribunal has itself observed that the notion of workplace would not extend to those accommodation, which may be even government pool accommodation but far away from the workplace. The test laid down to determine a particular place is workplace or not, as per the Tribunal, are the following:-
(a) Proximity -- from the place of work;
(b) Control of management over such place/residence where working woman is residing, and
(c) Such a 'residence' has to be an extension or contiguous part of working place."
24. The test laid down to determine a particular place is ~ workplace or not is proximity from the place of work, control of management over such place / residence where working woman is residing and such a residence has to be an extension or contiguous part of working place.
25. Waving regard to these tests, it becomes imperative for the employer to refer the complaint of sexual harassment to the Internal Committee as without recording evidence it cannot be determined proximity from the place of work, control of management over such place where working woman is residing and whether such a residence is an extension or contiguous part of working place. Without recording evidence, it would not be appropriate on the part of 29 ~ OANo. 1001/2022 the disciplinary authority to reject the complaint. The disciplinary authority is not an inquiring authority in terms of proviso to Rule 14(2) of CCS CCA Rules. The inquiring authority is the Internal Complaint Committee. However, as indicated earlier, disciplinary authority has no jurisdiction to form any opinion on the complaint under POSH Act. Therefore, the respondents committed error in refusing to forward the complaint to the Internal Complaint Committee. There is nothing on the record to show as to whether the respondents had heard the applicant before passing any such order. In view of this, the best course open for the respondents was to refer the complaint to the Internal Complaint Committee. Therefore, we are of the considered opinion that the respondents committed grave error in dismissing the complaint of the complainant of sexual harassment.
26. We, therefore, do not find that the order of the disciplinary authority to dismiss the complaint of the applicant under POSH Act is proper. In these circumstances, OA is allowed. Order dated 21% April, 2022 passed by the 30 OA No. 1001/2022 respondent no. 4 is set aside. Respondents are directed to forward the complaint of the applicant under POSH Act dated 21" April, 2022 to the Internal Complaint Committee. Internal Complaint Committee to decide the complaint of the applicant dated 21" April, 2022 as per rules. With these directions, OA stands allowed with no orders as to cost. Pending MAs, if any, stand closed.
(Rajinder Kashyap) (Justice M.G. Sewlikar) Member (A) Member (J) nk.