Karnataka High Court
Suman Saurabh vs The Internal Complaints Committee on 1 July, 2019
Equivalent citations: AIRONLINE 2019 KAR 970, 2019 (4) AKR 357 (2019) 163 FACLR 494, (2019) 163 FACLR 494
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2019
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.29790/2014 (GM-RES)
BETWEEN
SUMAN SAURABH
S/O AKHILESHWAR PRASAD,
AGED ABOUT 35 YEARS,
R/AT S-36,
MAHAVEER VARNA APARTMENT,
KANNAMANGALA,
SATHYA SAIBABA ASHRAM ROAD,
BANGALORE-560067. ... PETITIONER
(BY SRI. L GOVINDRAJ, ADVOCATE)
AND
1. THE INTERNAL COMPLAINTS COMMITTEE
SEXUAL HARASSMENT OF WOMENT AT
WORKPLACE (PREVENTION, PROHIBITION AND
REDRESSAL)ACT,2013,
HEWLETT PACKARD GLOBALSOFT PVT., LTD.,
HP AVENUE, 39/40, ELECTRONIC CITY
HOSUR ROAD,
BANGALORE-560100
2. THE MANAGING DIRECTOR
HP INDIA,
HEWLETT-PACKARD INIDA SALES PRIVATE
LIMITED,
1ST-4TH FLOOR,
2
TOWER D & TOWER E-DLF CYBER GREEN,
DLF CYBER CITY PHASE III
BURGAON,HARYANA-122022
3. THE UNION OF INDIA
MINISTRY OF LAW AND JUSTICE,
NEW DELHI-110 001,
REPRESENTED BY
PRINCIPAL SECRETARY. ... RESPONDENTS
(BY SRI. C P AYAPPA, ADVOCATE FOR
RESPONDENTS 1 & 2
SRI. C.SHASHIKANTH, ASG FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
NOTICE DATED 23.6.2014 ISSUED BY THE R-1 VIDE
ANNEXURE - V AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Sri.L.Govindraj, learned counsel for the petitioner submits that prayers (c) & (d) may be dismissed as not pressed for time being.
The said submission is placed on record. Accordingly, prayers (c) & (d) in the writ petition is dismissed as not pressed.
3
2. The petitioner filed the writ petition for writ of certiorari to quash the order/notice dated 23.06.2014 issued by the first respondent and to declare that second respondent has no power to hold second inquiry in respect of the same charges against the petitioner.
3. It is the case of the petitioner that the petitioner was working as an Engineer in the second respondent-Company and as on the date of filing the writ petition, he was holding the post of Manager, CSC Business Analytics Team and Programme Manager. The petitioner's performance has been rated with top ratings by the second respondent-Company as per employees rating system in the past 11 years. When things stood thus; the petitioner received an e-mail on 29.01.2014 from an employee of HR Department requesting the petitioner to attend a meeting on the same day. The meeting however turned out to be an inquiry for alleged sexual harassment. The petitioner was forced to resign to his services upon conclusion of the meeting, without 4 receiving a copy of the complaint and he was also not aware of the allegations made against him.
4. Upon regaining self-composure, the petitioner wrote a letter to the Committee member expressing his displeasure over the manner in which the proceedings were conducted and also forwarded a copy of that e-mail to his Manager. The petitioner's resignation was however accepted on 31.01.2014 and he was to be relieved from service on 25.03.2014 as is evident from Annexure-G. The petitioner was subjected to further inquiry on 03.02.2014 and then asked to sign documents prepared by the Committee. The petitioner declined and informed the same to his manager.
5. Thereafter, the petitioner had not received correspondence from the first respondent, but he was allowed to continue in employment even after 25.03.2014. In the circumstances, he assumed that the matter was closed. Indeed, the petitioner was sent to the United States 5 on an assignment on 28.04.2014. Once again he was sent to the United States on 12.05.2014 on a project. While in the Unites States, he received a communication from the first respondent dated 15.05.2014, enclosing a report dated 11.05.2014 holding the petitioner guilty of some of the charges of alleged sexual harassment. The first respondent recommended for termination of petitioner's service. After receipt of e-mail, petitioner submitted his response reiterating that he is innocent in the matter while pointing out flagrant statutory violations made by the Committee. When things stood thus, the first respondent again issued the impugned notice as per Annexure-V dated 23.06.2014 initiating fresh investigation/inquiry of the complaint filed by Ms. Asharani.S on 21.01.2014. Hence, the petitioner is before this Court.
6. The first respondent has filed the objections to the writ petition, contending that the writ petition filed against initiation of fresh investigation is not maintainable. On 6 receipt of the complaint relating to the sexual harassment against the petitioner on 21.01.2014, the first respondent discharging its responsibilities envisaged under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (for short the "Act") conducted an inquiry in a fair and unbiased manner. It is further contended that though the sexual harassment Rules were notified in December, 2013, there was lack of clarity in respect of this requirement during the early days and keeping in mind the sensitivity of the issue of sexual harassment and with an intension to protect the identity of the victim, a copy of the complaint was not served on the petitioner. However, the petitioner was proved guilty in the meeting dated 29.01.2014. The petitioner was also allowed to participate in the inquiry proceedings and the statement of the petitioner was recorded as per Annexures-W1 & W2. Statement of the victim was also recorded as per Annexures
- W3 & W4. Based on the investigation, the first respondent 7 issued report dated 11.05.2014 holding the petitioner guilty of some of the charges of alleged sexual harassment.
7. According to Section 11 of the Act, a copy of the said report was provided to the petitioner in order to record his findings. The procedure adopted by the first respondent was fair and therefore, there is bonafide on the part of the first respondent. It is further contended that thereafter an e-mail dated 22.05.2014 received by the petitioner alleging the process prescribed under the sexual harassment Rules were violated during the inquiry proceedings, on the basis of the said e-mail, the decision to conduct fresh inquiry/investigation to the complaint afresh without any conclusion or interference being drawn from the past investigation proceedings. Therefore, sought to dismiss the writ petition.
8. I have heard the learned counsels for the parties to the lis.
8
9. Sri. L. Govindraju, learned counsel for the petitioner reiterating the grounds urged in the petition has contended that the impugned Annexure-V dated 23.06.2014 issued by the first respondent to hold fresh inquiry/investigation is impermissible, when the report already submitted by the first respondent on 11.05.2014 is still pending for adjudication. Therefore, the same is liable to be quashed. He would further contend that the plain reading of the report dated 11.05.2014 prepared by the first respondent does not disclose any harassment as alleged in the complaint, much less sexual harassment. Indeed, having recorded a finding that none of the acts amounts to sexual harassment, the recommendation for imposing extreme penalty of termination is indicative of prejudice and malafides on the part of the first respondent. When the recommendation is still not implemented, the first respondent absolutely has no jurisdiction to conduct second investigation/inquiry, which 9 is not permissible for the first respondent to initiate fresh inquiry. Therefore, sought to allow the writ petition.
10. Per contra, Sri. C.P.Ayappa, learned counsel for the respondents 1 & 2 reiterating the averments made in the statement of objections contended that on the complaint made by an employee an inquiry was initiated against the petitioner and after an inquiry, the recommendation was made for termination of petitioner from his services. In the meanwhile, the first respondent received an e-mail from the petitioner stating that the first respondent has not complied certain provisions and not furnished a copy of the complaint to him. Therefore, the first respondent thought fit to initiate a fresh inquiry against the petitioner. Therefore, sought to dismiss the writ petition.
11. Having heard the learned counsels for the parties, it is an undisputed fact that the petitioner was working as an Engineer in the second respondent-Company and as on the 10 date of filing writ petition was filed he was holding the post of Manager, CSC Business Analytics Team and Programme Manager. The petitioner's performance has been rated with top ratings by the second respondent-Company as per employees rating system in the past 11 years. It is specific case of the petitioner that when the first respondent initiated proceedings on the alleged complaint made by the complainant/employee-Ms.Asharani.S, a copy of the complaint was also furnished and he has participated in the inquiry proceedings and he has raised the objections and violations on the Rules provided under the Act. In spite of the objections, the first respondent proceeded to record the finding on six charges issued in the recommendation dated 11.05.2014/Annexure-L, which reads as under:
No: Issue Allegations Finding Basis of finding
1. Manager During the One on Not This allegation Suman one discussion on established could not be Saurabh 16 Jan 2014 with substantiated as it talks in the manager was during a one unethical (Suman Saurabh) on one way and aggrieved conversation.
employee (Asharani 11 S) the managers had used obscene examples like
- Watching blue films
- How would you ask your wife to remove clothes
- To go to Amsterdam for having "Legal sex"
and view "live sex"
2. Manager Asharani says that established Suman has himself Suman he has a habit of admitted to Saurabh lays putting his hand on hugging Team hands on the her shoulders and Members on aggrieved talk and hugging Birthdays, which employee her when viewed from the perspective of a woman employee who is no culturally exposed to the same and is averse to such conduct, constitutes unwelcome behavior. Evidence:
Exhibit No.4-Point no.10 & Exhibit No.3 Point 7.12
3. Manager For improving my Not proved This allegation Suman (Asharani's) could not be Saurabh communication, substantiated as gives boldness and the conversations examples in shyness he (Suman) were mostly one to sexual terms gives examples in one.
sexual terms
4. Manager Suman will show Not proved Suman confirmed shares other me some bad- that he shared employees mannered messages extremely private personal and tell me to read information of a information those messages and lady colleague with team make fund of it. regarding her members The content of this pregnancy, with unsolicited Asha and Ashwin extremely private on his own.
information of a Evidence: Exhibit
lady colleague No.4 & 3.
regarding her This incident may
pregnancy. not directly
constitute sexual
harassment per se,
however when
viewed with the
series of incidents
that aggrieved
employee has
alleged to the
subjected to, these
have created a
hostile work
environment for the
aggrieved woman
employee.
13
5. Usage of bad Suman Saurabh Not proved Suman has himself
language on uses "FUCK" word admitted this.
floor on the floor. This Evidence: Exhibit
makes Asharani No.4.
very uncomfortable Though this is not
at the workplace. sexual harassment
intended directly at
Asharani, it has
created a very
offensive hostile
work environment
for the aggrieved
employee, which
falls under sexual
harassment.
6. Plays sex Suman Saurabh Substance Suman has
related games plays games related found admitted to playing
on floor to sex on the floor the Psychometric
with all the team game first with one
members. In the of his team
game all members members Natasha,
are asked 4 who then played it
questions: in his presence,
1. Name your with the team.
favorite animal and Asharani was
why do they like present there and
that animal. felt very
(answer to this uncomfortable.
question will tell
about your Evidence: Exhibit
personality) No.4
2. If you have 3
keys and 3 lockets A hostile work
of different sizes environment was
which key you created for the
would take it to aggrieved woman
open the door. employee by the
(answer to this sexually explicit
question will tell sexually coloured
14
about your ego) content the game
3. What will you do played.
when you see a
ocean.(answer to
this question will
tell about your sex
drive)
4. How will you like
your room to be?
(answer to this
question will tell
about your
perspective towards
life)
12. Ultimately, exercising the powers under Section 11 of the Act, the first respondent recommended for termination of services of the petitioner. Admittedly, the said recommendation was not implemented. When things stood thus, very strangely the first respondent issued one more notice communicating the petitioner that ICC-first respondent initiated fresh investigation on the complaint filed by Ms. Asharani.S dated 21.01.2014. When the first respondent initiated proceedings on the basis of the complaint made by women employee-Ms. Asharani.S under the provisions of the Sexual Harassment of Women at 15 Workplace (Prevention, Prohibition and Redressal) Act, 2013; initiated proceedings and recommended for termination of the petitioner holding that one of the charges is proved, before the recommendation culminated into any further action, on the basis of the alleged e-mail received by the petitioner, the first respondent proceeded to initiate fresh inquiry, which is impermissible under the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
13. The provisions of Section 11 of the Act reads as under:
"11. Inquiry into complaint.-(1) 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 a period of seven days for registering the case under section 509 of the Indian Penal Code, 1860 (45 of 1860), 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 16 settlement arrived at under sub-section (2) of Section 10 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 are 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, 1860 (45 of 1860), 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 15.
(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 (5 of 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."
17
14. Sri. C.P.Ayappa, learned counsel for respondents 1 & 2 is not in a position to assist the Court whether such procedure is permitted under the provisions of Act and Rules stated (supra) or any regulations made by the first respondent. Until and unless, the recommendation is implemented in accordance with law, it is not permissible for the first respondent to initiate fresh inquiry or if the first respondent wants to provide an opportunity to the petitioner on the basis of an e-mail request made by him, the first respondent in all fairness ought to have dropped the proceedings if they had violated procedure as contemplated. Admittedly, the proceedings has not been dropped, recommendation made against the petitioner is still hanging on his head. In the meanwhile, initiating fresh inquiry on the same charges on the complaint made by Ms. Asharani.S is totally without jurisdiction.
15. In view of the provisions of Article 20(2) of the Constitution of India, no person shall be prosecuted and 18 punished for the same offence more than once as it amounts to "double jeopardy". Therefore, the initiation made by the first respondent for a fresh inquiry on the same charges, on the same complaint is impermissible. Admittedly, the recommendation made by the first respondent is still pending for adjudication and the initiation of second inquiry is without jurisdiction. Therefore, the same cannot be sustained.
16. In view of the aforesaid reasons, the writ petition is allowed. The impugned notice/order dated 23.06.2014, Annexure-V is hereby quashed. Rule is made absolute.
Sd/-
JUDGE SMJ