Allahabad High Court
Vashudha Khanna vs State Government Of U.P. on 12 July, 2022
Bench: Anjani Kumar Mishra, Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Reserved on 08.04.2022 Delivered on 12.07.2022 Court No. - 46 Case :- CRIMINAL MISC. WRIT PETITION No. - 2904 of 2022 Petitioner :- Vashudha Khanna Respondent :- State Government Of U.P. Counsel for Petitioner :- In Person Hon'ble Anjani Kumar Mishra,J.
Hon'ble Deepak Verma,J.
This is an e-filed writ petition by the petitioner who has appeared in person.
Heard Ms. Vashudha Khanna, petitioner in person and Sri Manish Goyal, learned Additional Advocate General for the State respondent.
The instant writ petition has been filed with following prayer:-
"In the view of above facts and circumstances, it is most respectfully prayed that this Hon'ble Court issue writ of mandamus to respondent No.1 to launch FIR and investigate the matter."
Petitioner submitted that she had filed a compliant of mental harassment, bullying and criminal intimidation on 29th September, 2020 before Commissioner of Police, NOIDA. The complaint was against her superiors at her work place. In complaint, she raised allegations of being humiliated and of being threatened by e-mail by accused. Petitioner submitted that accused No.1, namely, Manuji Kinshuk works as AVP at Barclays Global Service Centre, NOIDA and accused No.2, namely, Manish Kapur works as Assistant Manager at Barclays Global Service Centre, NOIDA and the petitioner/complainant work with Barclays Global Service Centre, NOIDA as Process Advisor and used to report to accused No.2 directly. Accused No.2 reports to accused No.1. Petitioner further submits that she made complaint on 29th September, 2020 before the Police Commissioner, NOIDA. In its regard ACP, NOIDA informed her that the allegations raised a dispute of civil nature and facts alleged in the complaint are not punishable under the Indian Penal Code. Petitioner informed the NOIDA Police regarding CCTV camera from where they could collect the evidence regarding intimidation by her superior officers but NOIDA Police has not considered the grievance of the petitioner regarding CCTV camera footage and discard it, relying only on the statement of senior officer and dropped the investigation.
In para 12 of the petition it is averred that police never bothered to launch FIR in the matter and rather ridiculed the complainant. Her humiliation, harassment and intimidation was serious leading to mental trauma, due to which she could not report to work. She was emotionally traumatized and had to take medicines and counselling sessions from psychologist to come out of the depression.
Petitioner further referred to para 14 of the petition wherein it is stated that she was threatened by accused No.2 at the behest of accused No.1. She was able to work only ten days in the month of January, 2020 due to her deteriorating health and illness. She was harassed by accused Nos.1 and 2 and was placed on unpaid medical bench for three months. Due to this distressing and agonizing response, she approached the Global leadership and on 07th May, 2020 an internal audit was conducted but unfortunately this audit continued so long that she lost her patience after a certain point as her emails received no response she made the police complaint on 29th September, 2020. On 06th November, 2020 she received a response from the auditor that audit is complete. However, by this time, the police complaint was already lodged.
Learned AGA opposed the argument raised by the petitioner and argued that on preliminary enquiry no offence regarding criminality had been found against the respondent. Hence, no criminal case had been registered. However, there is statutory alternative remedy for lodging the FIR. Petitioner can avail the remedy provided under the provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
Section 11 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is quoted hereinbelow:-
"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 (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 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) ????.
(3) ????..
(4) ????.."
From perusal of writ petition and upon hearing of petitioner in person and Sri Manish Goyal, learned AGA for the State it emerges that the petitioners' complaint against her senior officers relates to harassment, intimidation and humiliation at workplace.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 describes an aggrieved women as follows:-
"(i) in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;
(ii) in relation to dwelling place or house, a woman of any age who is employed in such a dwelling place or house;"
Section 3 of the said Act reads as follows:-
"3. Prevention of sexual harassment.?(1) No woman shall be subjected to sexual harassment at any workplace.
(2) The following circumstances, among other circumstances, if it occurs, or is present in relation to or connected with any act or behavior of sexual harassment may amount to sexual harassment:?
(i) implied or explicit promise of preferential treatment in her employment; or
(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."
The above provision namely Section 3 clearly provides that interference with the work of a women or actions, which create an intimidating, offensive or hostile work environment, in relation to or connected with in act or behavior of sexual harassment, is not permissible.
Section 4 provides for Constitution of Internal Complaints Committee by every employer and the constitution of such Committee.
Apart from the above Internal Complaints Committee, the Act also provides for Constitution of a Local Committee to receive complaints of sexual harassment relating to establishments which do not have an Internal Committee. An aggrieved women is entitled to make a complaint regarding sexual harassment to the Internal Committee or to the Local Committee where an Internal Committee does not exist as provided under Section 9 of the Act.
It would be relevant at this stage to categorically observe that the petitioner has not raised allegations of sexual harassment. This has also be specifically submitted by her, during the course of arguments. Her complaint to the police was for lodging of an FIR.
In the absence of any allegation of sexual harassment or to harassment of humiliation or intimidation shorn of sexual overtones, it was not open for the police authorities to have entered into any sort of enquiry because any allegation of humiliation harassment etc. shorn of sexual harassment would not entitle the police authorities to conduct any short of preliminary investigation. No such preliminary investigation is contemplated under the Indian Penal Code or the Code of Criminal Procedure.
The police appears to have followed the procedure provided under the Sexual Harassment of Women at Workplace Act and on the basis of a preliminary inquiry, arrived at a finding that no criminal offence is made out. The approach and the action of the police authorities as also the attendant preliminary inquiry is in the facts and circumstances, and allegations of the petitioner, de horse law.
Shri Manish Goel who has appeared for the respondents has not been able to point out any specific provision of law which enables the holding of a preliminary inquiry where a complaint is made seeking lodging of an FIR.
Under the circumstances, the preliminary inquiry and its findings are found to be without any mandate of law are therefore, wholly without jurisdiction. Moreover, once a complaint is made in writing alleging a criminal offence, a case has to be registered and only thereafter can the police authorities inquire into the matter or investigate the same.
Under the circumstances, we are constrained to hold that the preliminary inquiry as also the findings arrived therein are necessarily without any legal sanction and are held to be without jurisdiction for all practical purposes, accordingly.
At this stage, it is required to be considered as to what relief is liable to be granted to the petitioner in the instant writ petition. It is settled law that where the police authorities fail to lodge an FIR, an aggrieved person, can approach the Magistrate concerned by means of an application under Section 156(30 Cr.P.C. This alternative remedy is still available with the petitioner.
In our considered opinion, the writ court does not have any inherent jurisdiction to direct lodging of an FIR.
Under the circumstances, the writ petition is allowed in part. It is provided that the preliminary inquiry as also the findings returned therein be ignored and the petitioner is relegated to the alternative remedy of approaching the Magistrate concerned under Section 156(3) Cr.P.C. for redressal of her grievance.
In case the petitioner avails this remedy, the concerned Magistrate shall consider the complaint of the petitioner on its merits ignoring from any consideration the preliminary inquiry and the findings arrived at on her application dated 29.09.2020, strictly in accordance with law and take the matter to its logical conclusion as expeditiously as possible.
Subject to the above, this writ petition stands allowed in part.
Order Date :- 12.07.2022 Mayank