Orissa High Court
Jyoti Prakash vs Internal Appellate Committee on 16 May, 2018
Author: S.N.Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.242 of 2017
In the matter of application under Article 226 and 227 of the
Constitution of India.
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Jyoti Prakash ...... Petitioner
- Versus-
Internal Appellate Committee
and Others ... ..... Opposite Parties
Counsel for Petitioner : M/s. Prashanta Kumar Nayak, S. Mishra, A. K.
Mohapatra, S. N. Dash.
Counsel for Opp.Parties : M/s. A. K. Mishra, S. Subhadarshini;
M/s. D. K. Mishra and P. Behera.
PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment: 16.05.2018
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S. N. Prasad, J. This writ petition under Article 226 and 227 of the Constitution of
India for the following prayers:-
i) As to why the Disciplinary proceeding initiated against the petitioner
shall not be quashed;
ii) As to why the order dtd.27.12.2016 passed by the opposite party no.2
under Annexure-9 shall not be quashed.
iii) As to why the inquiry report dtd.30.11.2015 prepared by the Internal
Complaints Committee under Annexure-4 shall not be quashed; and
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iv) As to why the order dtd.14.7.2016 passed by the Internal Appellate
Committee under Annexure-6 shall not be quashed.
2. The brief fact of the case of the petitioner as per pleading made in
the writ petition is that the petitioner while working as Deputy Manager at
Rourkela Township Branch, Rourkela under the opposite party - Bank, has
been subjected to the allegation of sexual harassment by the opposite party
no.6 who lodged a complaint against him before the Chief Manager-Branch
Manager regarding misbehaviour of the petitioner towards her. The authority
has referred the matter before the Internal Complaints Committee, the
committee has issued notice to the petitioner, before whom the petitioner has
appeared and filed written submission against the allegation stating therein
that the same is false, fabricated and there is no evidence to substantiate the
aforesaid allegation but the Internal Complaints Committee has submitted
report before the competent authority by supplying copy of the same upon the
petitioner, who upon its receipt, has objected to it by filing an application before
the higher authority rebutting the allegation as also finding given by the
internal complaints committee but the higher authority has also not
appreciated the objection raised by him, rather confirmed the finding given by
the internal complaints committee, in consequence thereof the notice has been
issued by the disciplinary authority on 27.12.2016 giving therein the
opportunity to file reply with respect to the proposed punishment of imposition
of penalty of removal from service and thereafter this writ petition has been
filed, inter alia on the ground that before the internal complaints committee no
opportunity of hearing has been given, the petitioner has not even been allowed
to cross-examine the witnesses, the order has been passed giving the proposed
punishment without initiating any regular proceeding as stipulated in the
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Discipline and Appeal Rule, as such the entire action of the opposite party -
Bank is unreasonable and improper, hence not sustainable in the eye of
law.
3. The opposite party -Bank as well as the complainant - opposite
party no.6 have appeared and contested the case by vehemently arguing and
refuted the ground taken by the petitioner by submitting that the internal
complaints committee has followed all due procedures as provided under the
statutory provision, he has been allowed all adequate and sufficient opportunity
and thereafter the allegation of sexual harassment upon opposite party no.6
has been found to be proved, the copy of the enquiry report conducted by the
internal complaints committee has been supplied to the petitioner against
which he has also made objection before the higher authority but the finding
given by the committee has been confirmed and thereafter under the provision
of Discipline and Appeal Rule, the disciplinary authority has issued the notice
indicating the proposed punishment in order to provide opportunity of hearing
to the petitioner and at that stage this writ petition has been filed, as such the
writ petition is premature and this court sitting under Article 226 of the
constitution of India may not interfere in the stage of notice since the petitioner
will have opportunity to raise all the points before the competent authority in
his defence.
So far as the allegation of the petitioner that proper opportunity
was not given, it has been submitted that all adequate and sufficient
opportunity was given by the internal complaints committee and the petitioner
has not made any requisition to cross-examine the witnesses, rather as per the
principle to follow the principle of natural justice, the same has been followed
and thereafter the internal complaints committee has submitted a report, as
such it cannot be said that the principle of natural justice has not been
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followed, moreover even accepting the version of the petitioner that the
principle of natural justice has not been followed then also, on that count,
the notice dtd.27.12.2016 cannot be interfered at this stage since this point
can also be raised by the petitioner at the time of submission of his reply of
that and the same will be taken into consideration by the authority.
4. This court has heard the learned counsel for the parties in detail
and gone through the pleadings.
Before entering into the issue involved it would be relevant to
discuss regarding the enactment known as the Sexual Harassment of Women
at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter
referred to as the Act, 2013).
It needs to refer the background before the enactment of the Act,
2013. In order to tackle the problem of sexual harassment, the Ministry of
Women and Child Development, by a notification dtd.9.12.2013 passed the
Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 which became effective from December 9, 2013. The
Ministry also made the rules with regard to the same effective from the same
date. These rules are called the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Rules, 2013 (herein after referred to as
the Rules, 2013).
The Act to prevent incident of sexual harassment at workplace was
enacted in pursuance to the judgment rendered by Hon‟ble Supreme Court in
the case of Vishaka and Others Vrs. State of Rajasthan and others reported
in 1997 (7) SCC 323 wherein the Hon‟ble Apex Court has been pleased to hold
that sexual harassment at workplace is violative of constitutional rights of the
women (including rights of equality, practice any progression and to right to life
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with dignity) and are discriminatory towards women. In the absence of
safeguard, the court stated that an effective alternative mechanism
was needed to prevent violation of these fundamental rights in the
work place and to address the issue and to fill the legislative vacancy, the
Hon‟ble Supreme Court has also led certain guidelines which made it
mandatory for every employer to provide for a mechanism to redress grievances
relating to sexual harassment at workplace.
The Hon‟ble Apex Court also in the case of Medha Kotwal Lele &
Ors. Vrs. Union of India & Ors. reported in AIR 2013 SC 93 stated that the
Visakha guidelines had to be implemented in sum, substances and spirit in
order to bring gender parity by ensuring women at workplace with dignity,
decency and due respect. Thereafter ultimately the enactment has been done
by virtue of the Act, 2013 and Rules, 2013.
In the aforesaid Act, the sexual harassment, employer, workplace
has been defined along with the method to file complaint and the relief to be
given to the victim. In the aforesaid Act there is provision to constitute an
internal committee and complaint is to be made under the provision of section
9 and after the said complaint an opportunity for conciliation as per the
provision contained in Section 10 is to be given to the parties and in case of
failure the enquiry is to be made by the internal complaints committee under
the provision of section 11 of the Act, 2013. The enquiry report is to be
submitted in pursuance to the provision made U/s.13 of the Act and there is
also provision of appeal if person is aggrieved from the recommendation made
by the internal enquiry committee under the provision of section 18 and
simultaneously the duties of the employer has also been provided therein.
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The Rules, 2013 has also been enacted to deal with such
situation. For the present case the provision of section 11, 13, 18, 19 and
28 of the Act, 2013 as also the provision of Rule 9 of Rules, 2013 are
relevant, as such the same are being referred herein below:-
"11. Inquiry into complaint.-(1) Subject to the provisions of
section I0, the Internal Committee or the Local Committee, as the case may
be, shall, where the respondent is an employee, proceed to make t 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, 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 I0
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:
Provided further that where both the parties arc 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, 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 I5.
(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 under the Code of Civil
Procedure, 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 often 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
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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-
(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:
Provided 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.
18. Appeal.- (1) Any person aggrieved from the recommendations
made under sub-section (2) of section 13 or under clause (i) or clause (ii) of
sub-section (3) of section 13 or subsection (1) or sub-section (2) of section
14 or section 17 or non-implementation of such recommendations may
prefer an appeal to the court or tribunal in accordance with the provisions
of the service rules applicable to the said person or where no such service
rules exist then, without prejudice to provisions contained in any other law
for the time being in force, the person aggrieved may prefer an appeal in
such manner as may be prescribed.
(2)The appeal under sub-section (1) shall be preferred within a
period of ninety days of the recommendations.
19. Duties of employer.--Every employer shall-
(a) provide a safe working environment at the workplace which
shall include safety from the persons coming into contact at the workplace;
(b) display at any conspicuous place in the workplace, the penal
consequences of sexual harassments; and the order constituting, the
Internal Committee under subsection (1) of Section 4;
(c) organize workshops and awareness programmes at regular
intervals for sensitizing the employees with the provisions of the Act and
orientation programmes for the members of the Internal Committee in the
manner as may be prescribed;
(d) provide necessary facilities to the internal Committee or the
Local Committee, as the case may be, for dealing with the complaint and
conducting an inquiry;
(e) assist in securing the attendance of respondent and witnesses
before the internal Committee or the Local Committee, as the case may be;
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(f) make available such information to the Internal Committee or
the Local Committee, as the case may be, as it may require having regard
to the complaint made under sub-section (1) of Section 9;
(g) provide assistance to the woman if she so chooses to file a
complaint in relation to the offence under the Indian Penal Code (45 of
1860) or any other law for the time being in force;
(h) cause to initiate action, under the Indian Penal Code or any
other law for the time being in force, against the perpetrator, or if the
aggrieved woman so desires, where the perpetrator is not an employee, in
the workplace at which the incident of sexual harassment took place;
(i) treat sexual harassment as a misconduct under the service rules
and initiate action for such misconduct;
(j) monitor the timely submission of reports by the Internal
Committee.
28. Act not in derogation of any other law.- The provisions
of this Act shall be in addition to and not in derogation of the provisions of
any other law for the time being in force.
Rule 9 of Rules, 2013
9. Manner of taking action for sexual harassment.- Except in
cases where service rules exist, where the Complaints Committee 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, to take any action including a written apology, warning,
reprimand or censure, withholding of promotion, withholding of pay rise or
increments terminating the respondent from service or undergoing a
counseling session or carrying out community service."
It is evident from the provision as contained in section 11 that
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 period of seven days for registering the case under section 509 of the
Indian Penal Code, and any other relevant provisions of the said Code.
The second proviso stipulates that where both the parties arc
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
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both the parties enabling them to make representation against the findings
before the Committee.
Section 13 stipulates the provision after submission of the enquiry
report conferring power upon the employer 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.
Section 19 confers duties of the employer wherein subsection (i)
which stipulates to treat sexual harassment as a misconduct under service rule
and initiate action for such misconduct.
Rule 9 of Rules, 2013 contains provision with respect to such
condition where service rule does not exists and if the complaint committee
arrives at the conclusion that the allegation has been proved, it shall
recommend to the employer or the district officer, as the case may be, to take
any action including written apology, warning, reprimand or censure,
withholding of promotion, withholding of pay rise or increments, terminating
the respondent from service or undergoing a counseling session or carrying out
community service.
It is evident from bare reading of section 11 and 13 that section 11
deals with the position before initiation of enquiry while section 13 deals with
the situation after conclusion and submission of the enquiry report by the
internal complaints committee.
Section 11 stipulates that the internal complaints committee is to
proceed to make enquiry into the complaints in accordance with the provision
of service rule applicable to the respondent, meaning thereby enquiry is to be
conducted as provided under the provision of Discipline and Appeal Rule
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applicable to the concerned employee against whom the enquiry has been
initiated.
While section 13 stipulates that in case the internal committee has
came to conclusion that the allegation of sexual harassment is found to be true,
recommendation is to be made to the employer to take action for sexual
harassment as a misconduct in accordance with the provision of service rules
applicable, meaning thereby in case of the allegation having found to be true,
the recommendation would be made by the internal complaints committee
treating the sexual harassment as misconduct and to take action in pursuance
to the service rule, which suggests that the sexual harassment will be treated
as misconduct and thereafter the proceeding is to be initiated as per the service
rule applicable for imposing the punishment.
This can also be taken note from the provision of section 19(i)
which stipulates that treat sexual harassment as a misconduct under the
service rule and initiate action for such misconduct, meaning thereby when
there is stipulation to initiate action for such misconduct, the implied meaning
of the same would be a proceeding is to be initiated against the concerned
employee under the Discipline and Appeal Rule applicable.
This also further been clarified from the provision of Rule 9 of the
Rules, 2013 which is concerned with the situation where there is no service
rule exists, the warding is „to take any action‟ and there is no stipulation to
„initiate action‟ and there is difference in between the warding "to take action"
and "to initiate action", to take action means the action is to be taken by the
authority but to initiate action means that the action is to be initiated under
the Discipline and Appeal Rule where the service rule exists.
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Now it is to be seen that what is the service rule for imposing the
punishment which has been proposed, i.e. with respect to removal from
service and it is evident that the Discipline and Appeal Rule provides for
imposing penalty as enshrined under the provision of rule 67 which contains
under the heading „Miner Penalties‟ and „Major Penalties‟. Under the heading of
„Major Penalty‟ removal from service is found mentioned.
The provision of Rule 68 provides the process to initiate minor or
major punishment. For imposing major punishment the procedure is to frame
definite and distinct charge on the basis of the allegation against the officer and
the article of charge together with the statement of the allegation on which they
are based.
5. The petitioner contends herein by raising two grievances;
i) That before the internal complaint committee he has not be afforded with
adequate opportunity; and
ii) That the show cause notice dtd.27.12.2016 is not sustainable since it
contains the proposed punishment without following the procedure to
impose major punishment as enshrined under the provision of discipline
and appeal rule under Rule 68 of the aforesaid rule.
6. So far as the first ground is concerned, it is evident from the
material available on record that on the basis of the complaint submitted by
opposite party no.6 as under Annexure-1 duly been signed by other co-
employees working in the aforesaid bank, basis upon which the matter was
taken up by the internal complaints committee, while accepting it, notice has
been issued to the petitioner along with the copy of the complaint which has
been replied, as would be evident from Annexure-2 dtd.4.9.2015 whereby and
where under it has been stated that the entire allegation is false, fabricated and
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malicious and pre-designed and also sought for relevant documents. Thereafter
the petitioner has submitted a full-fledged response denying each and every
allegation vide his defence reply dtd.7.11.2015.
The internal complaints committee has proceeded with the enquiry
in presence of the petitioner, summoned the witnesses and recorded their
depositions. The witnesses are the co-employees working under the aforesaid
branch. The internal complaints committee has given a summery finding
stating therein that the charges leveled against the petitioner is supported by
evidence and the statements of the witnesses indicates that charges to be true.
None of the lady employee of the branch would feel secure to work with him as
a colleague, accordingly opined that the complainant‟s case comes under the
case of sexual harassment and recommend for appropriate action against the
petitioner in accordance with the provisions of the service rules applicable.
The petitioner thereafter has made a protest against the aforesaid
finding as would be evident from annexure-5 by filing an application before the
appropriate authority which although has been treated as an appeal against
the report submitted by the internal complaints committee and has been
disposed of confirming the fact finding given by the Internal Complaints
Committee observing therein that the enquiry has been conducted as per the
provisions of the SBI Officers Service Rule after providing him ample
opportunity to defend himself against the allegation and thereafter the
petitioner has also filed review to recall the aforesaid order of the appellate
authority as also the finding given by the internal complaints committee and
also represented before The General Manager and thereafter the notice
dtd.27.12.2016 has been issued upon considering the record of the enquiry
proposing therein to impose penalty of removal from service in terms of Rule
67(1) of SBI Officers Service Rule, calling upon to appear before the
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undersigned on 3.1.2017 for personal hearing and / or to make submission if
any and at that juncture this writ petition has been filed.
So far as the contention of the petitioner to provide an opportunity
of hearing before the internal complaints committee, it is evident from the
provision as contains in section 11 which is subject to the provision of section
10 the committee will proceed to make enquiry with the complaint in
accordance with the provision of service rules applicable to the respondent,
meaning thereby on the basis of a compliant the enquiry would be conducted
by the internal complaints committee in accordance with the provisions of
service rule.
This court, after going through the applicable service rule, has only
found which is not in dispute that the service rule does not provide the process
to conduct an enquiry rather the only process under the service rule is to inflict
punishment after following the procedure as provided under Rule 68 of the
service rule.
The provision of section 11 speaks regarding the applicability of the
service rules for conducting enquiry under the provision of the Act, 2013 but
since it is not available under the applicable service rule, as such this court is
only to see as to whether the principle of natural justice has been followed
before coming to a finding or not.
This court has gather after going through the material available
on record which has been annexed by the petitioner to the effect that after
service of copy of the complaint the petitioner has given detail reply in his
defence and after considering it the statement of the employees working in the
aforesaid branch has been recorded and thereafter the enquiry report has been
submitted by the internal complaints committee.
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This court finds that the internal complaints committee is of the
opinion with respect to the allegation of sexual harassment which is
found to be true and therefore recommending for appropriate action against
the respondent in accordance with the provision of the service rule applicable.
The relevant part of the finding given by the internal enquiry committee is being
referred herein below:-
"Summary of the Findings:- The charges alleged against the respondent
be supported by evidence but the statements of the witness indicates that
charges to be true.
None of the lady employees of the branch would fee secure to work under
/ with him as a colleague.
Besides the complainant every lady employee (witness) has own
experience to share where she has faced personal remark on attire, looks,
favoured language, unprofessional talk and behavior.
Even though he denies the words in his palm were not meant for the
complainant, he accepts that he has made mistake to other colleagues and
requests for others interference for compromise, indicates that the charges
by complainant to be true.
From all the above findings the Internal Complaint Committee is of the
opinion that the complaint case comes under the case of sexual
harassment and recommend for appropriate action against the respondent
in accordance with the provisions in the service rules applicable the
appropriate authority."
Thus it can be said herein that since the recommendation is to take
appropriate action in accordance with the service rule, which suggests that it is
only a fact finding enquiry and it is settled position of law that in the fact
finding enquiry only the requirement is to give show cause apprising the
delinquent employee who is to be proceeded or not to be proceeded, is to give
his reply to the draft charges and only after scrutiny of the reply the decision is
to be taken by the competent authority as to whether the charge as has been
leveled against such employee is relevant for the purpose of initiating a
department proceeding or not and in the case of fact finding enquiry there is no
occasion or also there is no provision to provide an opportunity to cross
examine the witnesses. The matter would have been different if the enquiry
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report which has been submitted by the internal complaints committee would
have submitted a report by proving the charge with the recommendation to
inflict punishment without following the provision as stipulated in the
applicable service rule, but that is not the case herein, rather the Internal
Complaints Committee has recommended after coming to the finding of proving
of the charge of sexual harassment after recording the deposition of the co-
employees working under the branch in question to initiate action in
accordance with the provision of the serve rule.
Furthermore, the implication of Section 11 is also there if the
decision to be taken for instituting a criminal case by forwarding complaint
before the police, thus section 11 implies for conducting enquiry and institution
of criminal case.
Further if the authority is not willing to refer the complaint before
the police rather taken decision to initiate action for imposing punishment
under service rule, then it will govern by Section 13, as such Section 11 does
not attract an opportunity to be provided to cross examine the witnesses, it is
for the reason that if complaint would be referred before police, it will lead to
criminal trial and thee the person will get an opportunity as per the provision of
Code of Criminal Procedure. The same will be applicable regarding opportuynity
if decided to initiate action as per service rule, the process as per Discipline and
Appeal Rule is to be followed, as such the first ground raised by the petitioner
that in view of the provision of section 11 of the Act, 2013 the principle of
natural justice has not been followed is not having any substance and
accordingly rejected.
9. So far as the second ground is concerned it is to be stated herein
that after submission of the internal inquiry report as stipulated under the
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provision of section 13 of the Act, 2013 wherein under sub-section 13(1) the
stipulation made therein to the effect that "to take action for sexual
harassment as a misconduct in accordance with the provisions of the
service rule applicable to the respondent or where no such service rule has
been made in such manner as may be prescribed." This provision has also been
read out along with the provision of section 19(i) of the Act, 2013 which
stipulates "treat sexual harassment as a misconduct under the service and
initiate action for such misconduct". These two provisions is to be read along
with the provision of Rule 9 of the Rules, 2013 which speaks "except in cases
where service rule exists, where the complaints committee 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, to take
any action including a written apology, warning, reprimand or censure,
withholding of promotion, withholding of pay rise or increments, terminating
the respondent from service or undergoing a counselling session or carrying out
community service."
It is evident from the aforesaid provision that this rule is made for
category of employees for whom there is no service rule exists and for such
category of employee in case of proving of charge of allegation of sexual
harassment, the stipulation made therein to take any action, there is different
in between the provision of section 19(i) and Rule 9 while under the provision of
Section 19(i) the stipulation made therein to initiate action for such misconduct
by treating sexual harassment as a misconduct for such category of employee
for whom the service rule is applicable but for such category of employee for
whom the service rule is not there the provision of Rule 9 of Rules, 2013
stipulates to take any action, as such for the category of such employee for
whom service rules exists, the action is to be initiated under the service rule
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but for such category of employees for whom the service rule is not there,
action is to be taken and there is material difference in between the words „to
initiate action‟ and „to take action‟.
„To initiate action‟ as per the service rules denotes to initiate a
regular proceeding in case of imposition of punishment either minor or major
as provided under the service rule while „to take any action‟ depends upon the
authority as has been conferred upon them by virtue of the provision of Rule 9
of Rules, 2013.
Further it is evident from the provision of section 13(1) where the
wording is to take action for sexual harassment as a misconduct in accordance
with the provision of service rule applicable, meaning thereby the sexual
harassment since is not under the fold of misconduct in the service rule and
when on the basis of the finding given by the internal complaints committee it
is found to be true, then it will be treated as misconduct and thereafter to take
action in accordance with the provision of service rule, meaning thereby the
imposition of punishment is to be taken in terms of the service rule applicable.
It is also relevant to state herein that if only on the basis of the
finding given by the internal complaints committee if an employee working in
the establishment found to be involved in the allegation of sexual harassment,
if inflicted with the major punishment, then it will be said to be contrary to the
service rule and the same will be in the teeth of the Article 311(2) of the
Constitution of India since in the Discipline and Appeal Rule, where the process
has been formulated to inflict minor or major punishment, has been provided
with the provision in terms of the intent of the provision as contained in Article
311(2) of the Constitution of India and if the stand of the opposite party - Bank
or the opposite party no.6 will be treated to be true that the second show cause
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notice with the proposed punishment which is impugned in this writ petition
has got no infirmity, then in that situation it will be said that there is violation
of the principle as laid down under Article 311(2) of the Constitution of India
read with Discipline and Appeal Rule applicable to the petitioner.
It is also to be state here that the wording made under section 13(1)
is of a misconduct and not of the proven misconduct, meaning thereby
misconduct if found to be arrived at by the internal complaints committee, the
same is to be dealt with by initiating a regular proceeding as applicable under
the Discipline and Appeal Rule.
10. In the backdrop of this factual aspect, now it is to be seen the
legality and propriety of the order impugned which is with the proposed
punishment.
It is not in dispute that the proposed punishment is only issued
after the finding given by the enquiry report forwarded before the disciplinary
authority who, accepting it, issues the proposed punishment by way of second
show cause notice, thus the second show cause notice is to be issued after
conclusion of enquiry.
The Bank, presuming the report submitted by the internal
complaints committee as enquiry report under the Discipline and Appeal Rule,
has issued the impugned proposed show cause notice. As has been stated
herein above that in the Act, 2013 there are two parts, Section 11 deals with
the duty of the internal complaints committee to conduct an enquiry and it can
be submitted before the police by way of a complaint if intended to take
criminal action or can be submitted before the disciplinary authority for dealing
with such employees under the Discipline and Appeal Rule which is under
Section 13 of the Act, 2013.
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In view thereof the report submitted by the internal complaints
committee in view of section 11 cannot be said to be an enquiry report in
terms of section 13 to be treated as enquiry report under the provision of
Discipline and Appeal Rule and since it is not an enquiry report to be treated
U/s.13 as enquiry report, the proposed punishment which is impugned in this
writ petition treating the enquiry report submitted under the provision of
Section 11 will be said to be an improper decision of the authority since that
stage has not yet come because as yet the proceeding has not been initiated as
contemplated under the provision of Section 19(i) of the Act, 2013 and in view
thereof the notice cannot be held to be sustainable in the eye of law.
11. This court while discussing the facts in detail herein above, has
found that the impugned notice issued on 27.12.2016 is in the teeth of the
recommendation made by the internal committee whereby and where under it
has been recommended for appropriate action against the respondent in
accordance with the provision of the service rule and certainly the service rule
to inflict major punishment for removal from service contains a procedure
under the provision of Rule 68, as such the punishment which has been
proposed for removal from service in terms of Rule 67(1) of SBI Officers‟ Service
Rule can only be inflicted and will be said to be in accordance with service rule
if followed by the procedure laid down U/s.68 of the aforesaid rule.
In view thereof the impugned notice dtd.27.12.2016 is not
sustainable in the eye of law, accordingly quashed.
12. In the result the matter is remitted before the disciplinary authority
of the petitioner to initiate a proceeding as per the applicable Discipline and
Appeal Rule and conclude the same within the period as per the stipulation
made under the provision of Act, 2013.
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With the above observation and directions the writ petition stands
disposed of.
...................
S.N.Prasad, J.
Orissa High Court, Cuttack, Dated the 16th May, 2018 / Manas.