Kerala High Court
K.P.Anil Rajagopal vs State Of Kerala on 20 October, 2015
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 3RD DAY OF OCTOBER 2017/11TH ASWINA, 1939
WP(C).No. 13811 of 2016 (B)
----------------------------
PETITIONER(S):
-----------------------
K.P.ANIL RAJAGOPAL,
AGED 34 YEARS, S/O. RAJAGOPAL V.G.,
RESIDING AT ANJALI (H), PERAMANGALAM P.O.,
THRISSUR DISTRICT, WORKING AS ASSISTANT PROFESSOR,
MECHANICAL ENGINEERING DEPT. AND HOLDING
ADDITIONAL CHARGE OF FINANCE CO-ORDINATOR,
TEQIP PHASE-II, COLLEGE OF ENGINEERING, THALASSERY,
KANNUR DISTRICT.
BY ADVS.SRI.P.N.SUKUMARAN,
SRI.K.A.ANAS,
SRI.AKHIL S.VISHNU.
RESPONDENT(S):
-------------------------
1. STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2. THE SECRETARYTO GOVERNMENT,
FINANCE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM DISTRICT-695 001.
3. THE DIRECTOR,
CO-OPERATIVE ACADEMY OF PROFESSIONAL EDUCATION,
PIN-695 001.
4. THE PRINCIPAL,
COLLEGE OF ENGINEERING,
THALASSERY,KANNUR DISTRICT-670 001.
5. SMT.SHIBILY.T,
ASSISTANT PROFESSOR,
COLLEGE OF ENGINEERING, THALASSERY,
KANNUR DISTRICT- 670 001, CHAIRMAN,
INTERNAL COMPLAINTS COMMITTEE.
WP(C).No. 13811 of 2016 (B)
6. SMT.P.RINITHA,
ASSISTANT PROFESSOR,
COLLEGE OF ENGINEERING,
THALASSERY,KANNUR DISTRICT- 670 001.
R1 & R2 BY GOVT.PLEADER SRI.B. VINOD.
R3 & R4 BY SRI.M.SASINDRAN, SC.
R5 BY ADV. SMT.ASHA BABU.
R6 BY ADVS. DR.K.P.PRADEEP,
SANAND RAMAKRISHNAN,
SMT.T.THASMI.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 03-10-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rs.
WP(C).No. 13811 of 2016 (B)
APPENDIX
PETITIONER'S EXHIBITS:-
EXHIBIT-P1: TRUE COPY OF THE REPORT SUBMITTED ON 19.10.2015, BY
THE 6TH RESPONDENT.
EXHIBIT-P2: TRUE COPY OF THE LETTER DATED 20.10.2015 SUBMITTED BY
THE PETITIONER BEFORE THE 4TH RESPONDENT.
EXHIBIT-P3: TRUE COPY OF THE CORRECTED REPORT SEIZED FROM THE
6TH RESPONDENT.
EXHIBIT-P4: TRUE COPY OF THE CHANGED REPORT OF THE PERSONALITY
DEVELOPMENT PROGRAM CONDUCTED ON 25TH-27TH, JULY, 2015,
SUBMITTED BY THE 6TH RESPONDENT ON 28.10.2015.
EXHIBIT-P5: TRUE COPY OF THE REPORT DATED 03.11.2015 SUBMITTED BY THE
PETITIONER BEFORE THE PRINCIPAL, COLLEGE OF ENGINEERING,
THALASSERY.
EXHIBIT-P6: TRUE COPY OF THE REPORT SUBMITTED BY THE TEQIP
MONITORING COMMITTEE ON 05.11.2015.
EXHIBIT-P7: TRUE COPY OF THE REPORT DATED 16.11.2015, ON PERMISSIBLE
AND NON PERMISSIBLE EXPENDITURES FOR CONDUCTING THE
PERSONALITY DEVELOPMENT TRAINING PROGRAM.
EXHIBIT-P8: TRUE COPY OF THE EXPLANATION DATED 24.11.2015, SUBMITTED BY
THE 6TH RESPONDENT BEFORE THE 4TH RESPONDENT.
EXHIBIT-P9: TRUE COPY OF THE REPORT SUBMITTED BY THE MONITORING
COMMITTEE, DATED 02.12.2015.
EXHIBIT-P10: TRUE COPY OF THE COMPLAINT FILED BY THE 6TH RESPONDENT
BEFORE THE INTERNAL COMPLAINT COMMITTEE AT COLLEGE OF
ENGINEERING, THALASSERY, DATED 27.11.2015.
EXHIBIT-P11: TRUE COPY OF THE REPLYDATED 07.12.2015 SUBMITTED BY THE
6TH RESPONDENT BEFORE THE 4TH RESPONDENT.
EXHIBIT-P12: TRUE COPY OF THE ORDER PASSED BY THE 4TH RESPONDENT
ON 08.12.2015.
EXHIBIT-P13: A TRUE COPY OF THE STATEMENT OF THE PETITIONER SUBMITTED
BEFORE THE ICC, DATED 02.02.2016.
EXHIBIT-P14: TRUE COPY OF THE LETTER ISSUED BY THE ICC ON 05.02.2016.
....2/-
WP(C).No. 13811 of 2016 (B)
EXHIBIT-P15: STATEMENT OF SMT.REESHMA DATED 06.01.2016.
EXHIBIT-P16: STATEMENT OF SMT.ANUPAMA DATED 22.01.2016.
EXHIBIT-P17: STATEMENT OF SRI.RAJIV.P,DATED 08.01.2016.
EXHIBIT-P18: STATEMENT OF SRI.SAJEEV, DATED 22.01.2016.
EXHIBIT-P19: TRUE COPY OF THE MINUTES OF THE FINANCE COMMITTEE
DATED 04.11.2015.
EXHIBIT-P20: TRUE COPY OF THE MINUTES OF THE FINANCE COMMITTEE
DATED 16.11.2015.
EXHIBIT-P21: TRUE COPY OF THE INQUIRY REPORT SUBMITTED BY THE ICC
ON 24.02.2016.
EXHIBIT-P22: TRUE COPY OF THE BILL NO.31550 DATED 24.07.2015.
EXHIBIT-P23: TRUE COPY OF THE MEMO ISSUED BY THE 4TH RESPONDENT,
DATED 20.11.2015.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
'C.R.'
K. VINOD CHANDRAN, J.
------------------------------------------
W.P.(C) No. 13811 of 2016 (B)
------------------------------------------
Dated: 03rd October, 2017
J U D G M E N T
The petitioner is aggrieved with the findings of the Committee, as entered in Ext.P21, based on a complaint by the 6th respondent, which is produced at Ext.P10. The complaint is under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ('Act of 2013' for short). Ext.P7 report by the petitioner is said to have resulted in the complaint. The Enquiry Committee conducted an enquiry as per Section 11 of the Act of 2013 and found that the petitioner is liable to apologize to the 6th respondent; which is impugned herein. W.P.(C) No. 13811/2016 -2-
2. The petitioner, an Assistant Professor in the College of Engineering, Thalassery, is also the Finance Coordinator. A personality development training program was conducted from 25th to 27th July, 2015, coordinated by the 6th respondent as Programme Coordinator. A report on expenditure was to be made by the petitioner regarding the training program, which was made as per Ext.P7. In that report, the petitioner had made a statement that the "original report was abducted by Smt. P.Rinitha" (sic). The petitioner intended to convey that it was taken away and suppressed by the 6th respondent.
3. The learned Counsel appearing for the 6th respondent specifically objected to the maintainability of the writ petition under Article 226 of the Constitution of India. The 6th respondent also submits that there is a wider connotation to sexual harassment, as seen from W.P.(C) No. 13811/2016 -3- sub-section (2) of Section 3 of the Act of 2013. The actions enumerated therein also would constitute an offense leading to sexual harassment, is the argument.
4. The petitioner, in his capacity of the Finance Coordinator, had made a report, on the basis of which the competent authority will have to find if the expenditures were proper or not. There are some discrepancies pointed out in the report, which were alleged to be occasioned by the negligence of the Programme Coordinator, the 6th respondent. It was also alleged that the original report was abducted (sic) by the 6th respondent. The 6th respondent had replied to the said allegations by Exhibit P8; which was considered by the Monitoring Committee (not one constituted under the Act of 2013, but, an administrative committee), as seen from Exhibit P9. The Committee, based on the allegation of harassment, W.P.(C) No. 13811/2016 -4- resolved to recommend that the Principal call for a written explanation from the 6th respondent as to the allegation raised by her. Significantly, the Committee simultaneously directed the 6th respondent to explain as to why the report of the programme was revised. Evidently, the first recommendation had led to the complaint under the Act of 2013.
5. The 6th respondent then filed Exhibit P10 complaint with the following allegations:
4) According to the complainant, the report submitted by the respondent is prejudiced, ill-motivated and with mala-fide intention.
The report is submitted by the respondent suppressing the material facts. In the report, the respondent alleged that, the complainant had abducted the report (Meant the report submitted by the complainant after conclusion of the training program) and made forgery in the attendance sheet. These two allegations W.P.(C) No. 13811/2016 -5- against the complainant are serious in nature and which is without having any pinch of truth.
5) The complainant submits that, the respondent had prepared the report not on facts & real circumstances. It is ill- motivated and willfully and intentionally prepared to sexually harass the complainant at the work place. The respondent had questioned the dignity & integrity of the complainant and abused his power as a Financial Coordinator and exceeded the limit for his own whims and fancies. Earlier, the respondent had submitted a letter dt. 20-10-2015 to the Principal in which, the respondent contended that, he had seen the report (Meant the report submitted by the complainant after conclusion of the training program) and it is subsequently missing from his file. That itself shows that, the complainant had submitted the report and it is missing while it was under his custody. The respondent is the custodian of his files and he alone is responsible for the missing W.P.(C) No. 13811/2016 -6- of report submitted by the complainant. The missing of report is a concocted story by the respondent. No point of time, the respondent raised such a complaint, that the report submitted by the complainant had abducted by the complainant. The letter submitted by respondent to the Principal is numbered in the inward register as 1059 itself unveils the real facts. When the report was prepared by the respondent in the month of November, after 27 days of above referred letter, 1st time he made an allegation that, the report was abducted by the complainant. If the allegation is true, the respondent would have been report the same to the higher authorities and is supposed to mention the date, time, place etc. of abduction.
6) The respondent made an allegation of forgery against the complainant in the report. The said allegation is also strongly denied by the complainant since it is false and baseless. Before making such an allegation, the respondent not even W.P.(C) No. 13811/2016 -7- conducted any enquiry in this regard. The complainant, the concerned students, or any other persons connected in this allegation could not get an opportunity of enquiry. The signatures in the attendance sheet are put by the concerned students and in this regard the complainant is ready & willing for any legal & scientific inquiry to substantiate the contentions. Without making any enquiry in this regard, the respondent jumped into a false conclusion that those signatures are forged one. This is not fair and it is the violation of principles of natural justice. The finding of the respondent is with mala-fide intention and it is meant for harassing & defaming the complainant.
7) The respondent by submitting such a false report, explicitly threatened the present and future employment of the complainant in the institution and created an intimidating or offensive or hostile work environment in the institution. The false allegation of abduction of report & forgery of attendance is really a W.P.(C) No. 13811/2016 -8- humiliating treatment for the complainant and which is adversely affected the mental health of the complainant.
6. The bland allegation is that the petitioner had made a report against the 6th respondent making certain allegations which are ill-motivated and intentionally prepared to sexually harass the complainant. There is no specific allegation of an act perpetrated of sexual harassment or the harassment alleged being aimed at sexual exploitation.
7. The Act of 2013 is intended at prevention of sexual harassment, the definition of which, as seen from sub section (n) of Section 2 of the Act of 2013, is as follows:
"(n) "sexual harassment" includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:-
W.P.(C) No. 13811/2016 -9-
(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;"
There is no complaint made of any such act having been committed by the petitioner.
8. Section 3 (2) reads as under:
"(2) The following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment:-
(i) implied or explicit promise of
preferential treatment in her
employment; or
W.P.(C) No. 13811/2016
-10-
(ii) implied or explicit threat of detrimental
treatment in her employment; or
(iii) implied or explicit threat about her present or future employment status; or
(iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or
(v) humiliating treatment likely to affect her health or safety."
9. As already noticed, there is no sexual harassment complained of and a solitary allegation of any or all of the acts enumerated under Section 3(2), cannot constitute an offense under the Act of 2013. Any such act should be connected with and in relation to any act or behaviour of sexual harassment. This Court also does not find any allegation of a promise, threat or an offensive or hostile work environment or a humiliating treatment against the 6th respondent, from W.P.(C) No. 13811/2016 -11- the complaint; which is in connection with an act or behaviour of sexual harassment. There is no allegation that the purported harassment was intended at sexual exploitation of the complainant; which can only be if there is any allegation as such of a sexual offense.
10. What is complained of is the report made as to the 6th respondent having 'abducted' (sic) the original report. The complaint is that the allegation in the report was only to harass the complainant which cannot constitute a sexual harassment merely because it was made against a female employee. If such complaints are allowed to be made under the Act of 2013, then, there could be no independent report made against any women employee in any organisation and no controlling authority would be able to properly supervise the work of a female employee.
W.P.(C) No. 13811/2016 -12-
11. As to the ground of maintainability; this Court is of the opinion that the College of Engineering, being a 'State' under Article 12 of the Constitution of India, and the action having been taken under the Act of 2013, especially causing serious consequences to the petitioner, this is a fit case where Article 226 of the Constitution of India can be invoked. The Committee's report also does not disclose any finding of sexual harassment. The statements made before the Committee indicate that the report of the Programme made by the 6th respondent; after submission was taken back by the 6th respondent and resubmitted. The Committee only found that the language used by the petitioner, specifically the word 'abducted' was improper. Intemperate language, if at all, used in a report, merely because the report was against a female employee, cannot constitute sexual harassment. The W.P.(C) No. 13811/2016 -13- Committee constituted under the Act of 2013 acted far beyond the scope of the powers conferred on it. In such circumstance, the recommendations of the Committee are set aside and the complaint found to be not one capable of institution under the Act of 2013.
The writ petition is allowed. No Costs.
Sd/-
K.VINOD CHANDRAN, JUDGE jjj 4/10/17