Allahabad High Court
Smt. Sarita Singh vs State Of U.P. And 4 Others on 12 December, 2019
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- WRIT - A No. - 9388 of 2016 Petitioner :- Smt. Sarita Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Dinesh Kumar Pathak,Adarsh Bhushan,Ajay Kumar Patel Counsel for Respondent :- C.S.C. Case :- WRIT - A No. - 13421 of 2016 Petitioner :- Lady Constable No. 208/962130018 C.P. Kalpana Pandey Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Dinesh Pathak Counsel for Respondent :- C.S.C. Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Adarsh Bhushan, learned counsel for the petitioner and Shri Apurva Hajela, learned Standing Counsel.
Writ Petition No.9388 of 2016 has been filed for following reliefs:-
"(i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 4.5.2015 (Annexure No.6) passed by respondent no.4, order dated 5.8.2015 (Annexure no.9) passed by respondent no.3 & order dated 11.12.2015 (Annexure no.10) passed by respondent no.2.
(ii) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondent no.4 to refund the recovered amount from the salary of the petitioner in pursuance of order dated 4.5.2015 passed by respondent no.4.
(iii) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents not to give any effect in pursuance of the impugned orders passed by respondent no.2, 3, 4 respectively."
Writ Petition No. 13421 of 2016 has been filed for following reliefs:-
"A. Issue a writ order or direction in the nature of certiorari quashing the impugned orders being orders no.CZ-CA-Rev.-(57)-2015 dated 11.12.2015 of respondent no.2, No.C.O.B.-CA-Nav-(Appeal (64) 2015/7955 dated 5.8.2015 of respondent no.3 and No.P-53/14 dated 4.5.2015 of respondent no.4 (Annexure No.8, 6 & 4 to the writ petition).
B. Issue a writ order or direction in the nature of mandamus directing the respondent no.4 to expunge his impugned order No.P-53/2014 dated 4.5.2015 from character roll of petitioner, so that may not be read.
C. Issue a writ order or direction in the nature of mandamus directing the respondent no.4 to pay the salary of petition withhold by his impugned order No.P-53/2014 dated 4.5.2015."
Since the controversy involved in both the writ petitions are similar in nature, they are being decided by this common order.
The facts of Writ Petition No.9388 of 2016 are being taken as a leading case for deciding the controversy.
The record in question reflects that the petitioner was appointed as lady constable in civil police on 5.2.1989 and initially posted at Deoria. Finally she was transferred to Police Station Dudhaura, Distt. Sant Kabir Nagar in 2008 and posted under fifth respondent. She was performing her duty sincerely and efficiently without any compliant. It is alleged that from the date of posting to P.S. Dudhaura Distt. Sant Kabir Nagar, the fifth respondent was having ill motive towards the petitioner and wanted to use her for his sexual requirement and for which the petitioner always cautioned him repeatedly but he could not amend himself. On 8.4.2014 the fifth respondent tried to sexually assault the petitioner when she was performing her duty at police station. The matter was also witnessed by several staff including one lady constable namely Kalpana Pandey (the petitioner in connected writ petition). Being aggrieved with the same the petitioner lodged complaint against the fifth respondent on 11.4.2014 to fourth respondent. Pursuant thereto an enquiry was conducted under the U.P. Police Officers of Subordinate Ranks (Punishment & Appeal) Rules, 1991 (in short "the Rules of 1991") and an Addl. Superintendent of Police was appointed as an enquiry officer to enquire into the matter. The enquiry officer conducted preliminary enquiry and vide its enquiry report dated NIL dated April, 2014 he had washed out the allegations of the petitioner against the fifth respondent on the basis of location details of petitioner's private mobile, which was left at the home of the petitioner at Basti. The enquiry officer held that since the location of personal mobile was showing its location at Basti hence the petitioner was not present at police station on the date of occurrence i.e. 8.4.2014 as such she was absent from duty, whereas G.D. maintained by fifth respondent was showing the petitioner to be present on 8.4.2014 at police station. On the basis of enquiry report submitted by the Addl. Superintendent of Police, Sant Kabir Nagar, the fourth respondent issued show cause notice to the petitioner on 10.5.2014 to which the petitioner submitted her reply dated 25.5.2014 categorically submitting that she was very well present on the date of occurrence i.e. 8.4.2014 at the police station when fifth respondent sexually assaulted her and the version of the petitioner is confirmed by the G.D. entry dated 8.4.2014. It is further stated in her reply that she cannot be shown absent on the basis of location of her personal mobile, which was unluckily left at the petitioner's residence at Basti. On the application of the petitioner higher authorities have further appointed another enquiry officer to Superintendent of Police, Siddharth Nagar and on his direction Circle Officer, Basti, Siddharth Nagar has conducted fresh enquiry in the matter and approved/ agreed with the earlier enquiry held by the Addl. Superintendent of Police, Sant Kabir Nagar vide its enquiry report dated 25.7.2014. In the light of the enquiry report dated NIL of April, 2014 and reply of the petitioner dated 25.5.2014 the fourth respondent had awarded penal deduction of 30 days salary from the payment of petitioner vide order dated 4.5.2015 under the Rules of 1991. Aggrieved with the order passed by fourth respondent the petitioner preferred appeal, which was also rejected vide order dated 5.8.2015 by third respondent. Against the same the petitioner preferred revision before the second respondent, which was also rejected vide order dated 11.12.2015 awarding additional punishment of censure entry in addition to penal deduction of 30 days salary. Pursuant to the order passed by fourth respondent dated 4.5.2015 the recovery of 30 days penal deduction has been done from the salary of the petitioner.
In this backdrop, it is submitted by learned counsel for the petitioner that the action of the respondents are against the record available before them as on one side they are relying upon the location of the private mobile of the petitioner and on another side they are showing the petitioner as present in the entries of G.D dated 8.4.2014. The respondents are alleging that the petitioner did not cooperate with the instruction of fifth respondent during the course of Lok Sabha Election 2014, whereas the documents placed before them shows that the petitioner had performed duty as Hamrahi along with fifth respondent on 7.5.2014. It is also contended that the second respondent has exceeded his jurisdiction by awarding censure entry to the petitioner in addition to penal deduction of 30 days salary, whereas there was no additional material available before second respondent and in case the revisional authority wanted to enhance the punishment he should have provided opportunity of hearing to the petitioner. In the present case no opportunity was provided to the petitioner, hence the order impugned is liable to be quashed.
Shri Adarsh Bhushan, learned counsel for the petitioner, in this backdrop, further makes submissions that once complaint has been made by the petitioner levelling certain allegations of sexual harassment against fifth respondent at the work place, the matter should be dealt with as per the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (in short "the Act of 2013") and is to be referred to Internal Complaint Committee headed by woman employed at senior level at work place from amongst employees or local committee in case it is so constituted. As per Section 11 of the Act of 2013 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. As per the provisions of Section 13 (3) of the Act of 2013 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 provided, 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. Whereas, it is contended, in the present matter though the complaint of sexual harassment has been entertained but in most arbitrary manner instead of adhering the provisions contained under the Act of 2013 and referring the matter to the Internal Committee or the Local Committee as per the Act of 2013, straightaway the Superintendent of Police has entrusted the enquiry to the Addl. Superintendent of Police and the proceeding has been drawn under the Rules of 1991. So far as actual complaint of sexual harassment, at no point of time, the matter has ever been placed before the Internal Committee or Local Committee, as the case may be.
It is contended that once the complaint for sexual harassment has been made by the petitioner, at the said stage, there was no occasion to draw the proceeding under the Rules of 1991. At no point of time any cognizance/proceeding whatsoever regarding dereliction of duty has been taken/initiated by the competent authority against the petitioner, contrarily once complaint of sexual harassment has been made instead of taking cognizance by the Committee as per the provisions contained under the Act of 2013, proceeding has been drawn under the Rules of 1991. Not only the proceeding has been drawn but the punishment has also been inflicted upon the petitioner. Therefore, the orders impugned cannot sustain and are liable to be set aside.
Per contra, Shri Apurva Hejela, learned Standing counsel has vehemently opposed the writ petition and submitted that the orders impugned have been passed strictly in accordance with law and there is no infirmity in them. He further submitted that the Act of 2013 clearly provided exhaustive procedure for making a compliant. He has placed reliance on Rule 9, which deals with the complaint of sexual harassment, which provides that any aggrieved woman may make in writing, a compliant of sexual harassment at workplace to the Internal committee if so constituted, or the Local committee, in case it is not so constituted. It is contended that in the present matter admittedly at no point of time the petitioner had made any complaint as per the provisions of Rule 9 of the Act of 2013. Once the complaint was made, then the competent authority taking the cognizance on the same had referred the matter to the Addl. Superintendent of Police under the Rules of 1991 and eventually after the enquiry it had been found that the allegation was mischievous and the said compliant had been made just to harass the officer and to avoid the duty. Once the procedure has been followed under the Rules of 1991, the authority concerned has passed an order inflicting punishment on the petitioner and the same has been affirmed in appeal and revision. Moreso this objection has not been taken at any stage, therefore, at this stage, present objection is totally unacceptable and the writ petitions are liable to be dismissed.
Heard rival submissions and perused the record.
On the matter being taken up on 05.12.2019, the Court had passed the following order:-
"Sri Adarsh Bhushan, learned counsel for the petitioner submits that the entire disciplinary action has been taken against the petitioner in the light of Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 whereas, in case, a lady office makes complaint of sexual harrasment, the same has to be entertained as per provisions of Section 11 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 whereby exhaustive procedure has been given that 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, and any other relevant provisions of the said Code where applicable and as such, it is contended that at no point of time, the said procedure has been adhered even though it has been claimed that the preliminary enquiry was conducted by a lady officer.
In the aforesaid situation, the respondent has to respond as to whether the aforesaid enquiry is as per Rules, 1991 or under the Act, 2013 and further in response to the Act, 2013 any such committee has been constituted in the Department concerned or not and in case, the same has been constituted then why the matter has not been referred to the said committee. For the said purpose, Sri Apurva Hajela, learned Standing Counsel is accorded a week's time to seek the necessary instructions.
Put up this matter on 12.12.2019."
In response to the aforesaid order, detailed instructions sent by the Superintendent of Police, Sant Kabir Nagar has been produced today, indicating therein that in the present matter at no point of time any proceeding under the Act of 2013 has been drawn.
The Act of 2013 had been enacted to provide protection against sexual harassment of women at workplace and for the prevention of redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto. The Act has been enacted to provide protection against sexual harassment and right to work with dignity as the sexual harassment results in violation of the fundamental rights of a workman to equality under Articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under Art.21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment. Sexual harassment at a workplace is considered violation of women's right to equality, life and liberty. It creates an insecure and hostile work environment, which discourages women's participation in work, thereby adversely affecting their social and economic empowerment and the goal of inclusive growth. Hon'ble the Supreme Court in the case of Vishaka v. State of Rajasthan, (1997) 7 SCC 323 also reaffirmed that sexual harassment at workplace is a form of discrimination against women and recognised that it violates the constitutional right to equality and provided guidelines to address this issue pending the enactment of a suitable legislation. Only in response thereof the Act of 2013 has been enacted just to safeguard the dignity of women.
Section 9 of Chapter IV of the Act of 2013 deals with complaint of sexual harassment, which is quoted as under:-
"9. Complaint of sexual harassment.?(1) 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, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident:
Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing:
Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit not exceeding three months , if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.
(2) Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section."
Section 11 deals with inquiry into complaint; Section 12 deals with action during pendency of inquiry and Section 13 deals with inquiry report. For ready reference, the same are also quoted 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 (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) Notwithstanding anything contained in section 509 of the Indian Penal Code (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 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.
12. Action during pendency of inquiry.?(1) During the pendency of an inquiry on a written request made by the aggrieved woman, the Internal Committee or the local Committee, as the case may be, may recommend to the employer to?
(a) transfer the aggrieved woman or the respondent to any other workplace; or
(b) grant leave to the aggrieved woman up to a period of three months; or
(c) grant such other relief to the aggrieved woman a may be prescribed.
(2) The leave granted to the aggrieved woman under this section shall be in addition to the leave she would be otherwise entitled.
(3) On the recommendation of the Internal Committee or the Local Committee, as the case may be, under sub-section (1), the employer shall implement the recommendations made under sub-section (1) and send the report of such implementation to the Internal Committee or the Local Committee, as the case may be.
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 of ten 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 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:
Provide 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."
Just to curb the false or malicious complaint and false evidence, Section 14 has been incorporated, which is reproduced as under:-
"14. Punishment for false or malicious complaint and false evidence.?(1) Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document, it may recommend to the employer or the District Officer, as the case may be, to take action against the woman or the person who has made the complaint under sub-section (1) or sub-section (2) of section 9, as the case may be, in accordance with the provisions of the service rules applicable to her or him or where no such service rules exist, in such manner as may be prescribed:
Provided that a mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant under this section:
Provided further that the malicious intent on part of the complainant shall be established after an inquiry in accordance with the procedure prescribed, before any action is recommended.
(2) Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that during the inquiry any witness has given false evidence or produced any forged or misleading document, it may recommend to the employer of the witness or the District Officer, as the case may be, to take action in accordance with the provisions of the service rules applicable to the said witness or where no such service rules exist, in such manner as may be prescribed."
In the present matter, once an application was moved alleging sexual harassment at work place, in such situation, the matter is to be referred to the Internal committee, if so constituted, or the Local Committee, in case it is so constituted. Section 11 provides the inquiry into the complaint, wherein full fledged mechanism is provided therein. As contemplated in Section 12 of the Act of 2013, during pendency of an inquiry on a written request made by the aggrieved woman, the Internal Committee or the Local Committee, as the case may be, may recommend to the employer to (a) transfer the aggrieved woman or the respondent to any other workplace; or (b) grant leave to the aggrieved woman up to a period of three months; or (c) grant such other relief to the aggrieved woman as may be prescribed. As per Section 13 (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 of ten days from the date of completion of the inquiry and such report be made available to the concerned parties. Section 13 (3) (i) provides 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. Safeguard is also provided in Section 14, whereby in case false or malicious complaint has been made and false evidence has been adduced, in such situation, the authority is also at liberty to proceed against the complainant herself and may be punished.
Most surprisingly in the present matter even though the petitioner made a complaint of sexual harassment, instead of proceeding under the Act of 2013, the authority has proceeded under the Rules of 1991 and has also opined that the said complaint was false and malicious. The same cannot be accepted by this Court. Once the complaint was made, it was paramount responsibility of the competent authority to proceed and to take cognizance under the Act of 2013 and in case on the basis of enquiry it is found that the allegations are correct, then the enquiry is to be contemplated as per the Rules of 1991.
In the aforesaid facts and circumstances, the orders impugned cannot sustain and the same are accordingly set aside. The authority would proceed under the Act of 2013 on the basis of written complaint made by the petitioner. Both the writ petitions stand allowed accordingly.
Order Date :- 12.12.2019 SP/